All legal hands on deck! Today we go to Court. The Election Contest Court (the ECC) holds its first public hearing TODAY at 2:30pm.
Its still Franken +225. Its still Coleman flipping his flops into new flips, turns, forward rolls, cartwheels, handsprings, tumbles and twists (thats his legal position, not a gymnastics floor exercise.)
Brownsox was kind enough to put up a front page piece yesterday on the MN Senate on-goings.....
...and YOU get a fresh, new diary that was written ENTIRELY during a new administration, where even the infinity of Orange ballots have a new look to them past (not below, PAST; told you it was new!) the fold......
1) Coleman Legal Team Gets Pushy
AS in legally pushy. Tuesday the Coleman campaign said they want a subpoena for a deposition from Gary Poser. Poser works in Secretary of State's Mark Ritchie as the statewide director of elections, sort of the inside, nutsy-boltsy guy. If you were watching when the 954 "5th pile" ballots got counted (after a 7 hour wait) it was Gary Poser who got to flip over the ballots one by one and sift them into piles saying, "Franken, Franken, Franken, Franken, Barkley, Franken, Lizard, Franken, Coleman, Coleman, Franken...."
Anyway the Coleman Team wants a deposition from Poser claiming Coleman might be missing 10 to 15 votes because of discrepancies between local totals and the totals the Sec. of State posted on their website.
It is unclear how Poser will respond, or even if he will have to. First, MN Attorney General Lori Swanson came out said she thought Poser should resist a subpoena. Second, Team Franken filed a motion to quash subpoena linked here near the bottom, both the motion and a memorandum in support of quashing:http://www.mncourts.gov/...
Team Coleman retreated just slightly and said if they didn't get a deposition (a sworn conversation beforehand) they would call Poser in the trial beginning Monday.
http://www.startribune.com/...
2) Meanwhile, Due Monday the 19th.....
Attention all teachers and project managers! Do you set deadlines? "Turn in the answers to page 36 on Tuesday morning"? "I need an estimate on how many cubic yards of concrete for the phase 2 foundation by the 16th, Francine."?
And what happens if someone misses a deadline? "You get a "0" Bobby." "Dammit Francine! I'm sending you to our Provo office!"
Now as you read above Knaak, Trimble, Magnuson and Freidberg have been busy looking at 12,000 absentee ballots, figuring out how to repeal certain sections of MN election law, and getting a subpoena ready for Gary Poser. BUT they seem to have forgotten something:
Last Friday the 16th the ECC ordered a set of dates and motions leading up to the opening date of trial on the 26th. And these were top of the Legal/Lawyer To-Do list for MONDAY, January 19th. You know, 2 days ago?
"Contestant's (Norm's) Answer to Contestee's (Al's) Counterclaims must be served (to AL) and filed (in court) by 4:30pm."
"Contestant's (Norm's) response to Contestees' (Al's) discovery requests must be served (to Al) and filed (in court) by 4:30pm."
That is, Franken gets to mount his own case (counterclaims) and Coleman has to respond by this deadline. (To lawyers in the house, if you don't respond to a counterclaim does it then stand and win by default?)
Well legal eagles in the house, my question still stands: Do Franken's unanswered counterclaims stand and/or win by default? And I add, how does a court look upon one of the parties that does not turn in their homework? Can they give extensions? Make up work? Impose sanctions? Rule summarily for the other side?
I repeat, from all indications late Tuesday night the Coleman side has NOT responded to the Franken Counterclaims as ordered by the court. Is there a penalty or range of penalties?
I'd love to hear your thoughts about this and I can't wait to hear what the ECC has to say!
3) Making Money Off the Inauguration
I noted yesterday Al Franken was in DC for the Inauguration and doing some fund raising at a $/plate dinner. He also sent out a beggar letter to his mailing list to keep the money flowing for legal costs.
Norm Coleman's people are also raising money for their side of the courtroom and likewise sent out a beggar letter to their supporters. You've seen plenty of these so the language is pretty standard, just tweaked enough to recent events to keep it fresh.
That said, Coleman's letter is showing, well, a lot of Brooklyn NOIVE (as Nahm would say in his native accent) in the lines in original italics:
Today marks an historic occasion for each and every American, from all backgrounds, all political philosophies and all walks of life. We all wish our new President well, and we will support him when we agree with him and be the voice of the loyal opposition when we do not.
Unfortunately, the kind of change that President Barack Obama brings to Washington is worlds apart from the kind of change that Al Franken is seeking here in Minnesota.
Barack Obama won a majority of our nation's votes fair and square. Al Franken had to change the rules of the game to overturn our victory.
Barack Obama was elected based on the principle of one person - one vote. Franken's lead exists because some votes were counted twice, while others weren't counted at all.
Franken's coordinated attempt to silence voices must not stand. But it might, unless I hear from you soon.
Click here now to contribute $15, $25, $35, $50, $100 or more - up to $2,300 per person - to the Coleman for Senate Recount Fund.
4) The Coleman Legal Team; With Friends like these, Norm.......
How good are they? They've certainly seemed tin-eared and lead-footed several times during this recount. Their reversals have been violent enough to burn out an alternator.
A blogger at the UpTake:
[Comment From ct-dem]
If I had a penny for every position Coleman has flipped on during this recount, I'd be a millionaire.
Legally trained Kossacks and others who have read through their various legal filings have called some of their work sloppy, with basic mistakes citing correct sections of MN law and bad spelling.
WE have NOT been impressed, or even confused:
[Comment From ct-dem]
but see according to coleman, the process is only fair and legal if they are in the lead.
[Comment From northernMNer]
Ok, so it seems to me that is a particularly dumb claim for the Coleman team to make
[Comment From 51st WardPrecinctCaptain]
That about summeth it up Connecticut
[Comment From northernMNer]
or am I missing something?
[Comment From nikip5555]
@northern, you're not missing anything
Blogger Vote For America has an exhaustive analysis of Norm's 204 page base filing of the Election Contest Court. He or She makes contact with the Hive Mind and says, "Norm you will be defeated. Your teeth will be assimilated. Your contest is futile." :http://voteforamerica.net/...
And this elegant remark from the Star Trib comment string:
I'm truly in favor of Mr. Coleman getting a fair hearing on his election contest. If he doesn't it will be his attorneys' fault for casting so wide a net for something - anything at all will do - to hang his legal challenge on. Each move they makes seems to imply more and more that they don't have any substantive or procedural evidence to justify overturning the current result in favor of Mr. Franken
But HEY, thats just us! Has the Coleman Legal Team impressed their supporters? Powerline, which publishes Hinderaker for cryin' out loud, has a typical, ...um...."Point of View" piece knocking both sides for their reversals on absentee ballots. Yet even THEY think Coleman is nuts trying to overturn MN law over the 12,000 absentee ballots (piles 1-5). Then they wind up with this great bit:
Until yesterday, the Coleman campaign sought the inclusion only of other absentee ballots it claimed had been improperly excluded by local officials. Prior to the election contest, the Coleman campaign had no problem with the requirements imposed by Minnesota's absentee ballot statute. Now the requirements of Minnesota law are unfair! They are an impediment to equal protection.
Knaak's statement is frankly ludicrous. It is nevertheless consistent with the Three Stooges quality of the work of the Coleman campaign following the canvas that has brought Senator Coleman to his current pass.
If you want to read the whole thing, put on your hazmat suit and go here:http://www.powerlineblog.com/...
5) Tune in For Today's Arguments in the ECC.... or maybe not
As we noted a couple days ago virtually every media outlet in MN signed onto a letter to the ECC asking for live cameras in the courtroom. It sounds like they would very much like to start TODAY and certainly on Monday for the trial formal. As noted earlier both Franken and Coleman have agreed to this (a prime condition for admitting cameras in MN) but its still up to Hayden, Reilly and Marben. As of Tuesday at the 4:10 live blog time marker:
Mike McIntee: We have still not had a decision from the 3 judge panel hearing the Franken/Coleman case on allowing a camera in the courtroom for tomorrow's motion to dismiss.
Wednedsday Morning Minnesota Media
While some guy from Illinois was getting a new job yesterday (Hallelujah!) legalities kept flying. The Franken Camp formally filed their answer to the Coleman 5-part, slow walk, "lets not start really throwing stuff around until Feb. 9" schedule. The filing, signed by Franken's utterly main lawyer David Lillehaug, wrote in part:
Coleman’s side is seeking a "far flung re-re-inspection of ballots in the hopes of finding error where none has been identified."
That is NOT a typo on my part. In an official court filing to try to get Al Franken to the US Senate Lillehaug used "re-re-inspection." Its a jewel of a semi-made up word that just might catch the eye and linger in the mind of a judge: accurate description, terse, yet with an air of foolishness in describing the other side that clings like an opened can of "Elk-in-Heat" Hunter's Aid.
Crack in the Case? Department
You know those duplicate/double counted ballots the Coleman camp keeps insisting a) exist, b) favor Franken? The Franken position has been consistent, most recently in Franken's last filing asking for a Certificate of Election:
Franken lawyer David Lillehaug wrote, "Coleman has not only failed to prove that any double-counting occurred in any precinct; they have not even attempted to do so." (Italics are Lillehaug’s.)
But now the Coleman team's Tony Trimble has....read some of the filings (! Tony! Earned your pay for the day!) and notes:
But Trimble points to one of Franken’s very own legal filings from Jan. 12 to show even the Franken side thinks some votes were counted twice.........
On Page 28 of "Contestee's Answer and Counterclaims" Franken’s side points to probable double-counting of 34 votes in 12 precincts that seem to have favored Coleman, Trimble notes.
"They’re not asserting that [double counting] occurred to their benefit, but they’re claiming it occurred to our benefit," Trimble said. "That’s a tacit admission that it does occur.........
"It doesn’t take a genius monkey to figure that out," Trimble said.
Well they've got something there so we'll see how Franken's side repsonds. Not crippling by any means but it sounds like an opening for the Coleman side.
.......Lazy headline in the Star Tribune again on B1: "Franken ratchets up legal fight". C'mon! BOTH sides are filing motions faster than a naked sauna sweat-er running back from the snowbank. Why hang it on ONE side?? Bleeh..... Pat Doyle's long article does run down the latest moves by both sides......Franken's moves are to raise the bet on both the ECC and the MN Supreme Ct. to issue a Certificate of Election BEFORE the ECC trail plays out. I can see why their doing it but I don't care much for it and don't think it will go anywhere. Like Mark Ritchie said about the State Canvassing Board, "We will NOT be rushed."
The subpoena to depose Gary Poser might not go anywhere: Deputy Sec. of State Jim Gelbmann noted both sides had been given spreadsheets as the recount had gone along and nobody had noted any error then, but they were reviewing things and providing extra info now to the Coleman team that might make a subpoena unnecessary.....
AND.....no word this morning from any media source or the ECC court regarding live video cameras in court, whether today, Friday, or trial starting day Monday. For the moment its NO cameras, but if we get a change we will update this diary with a 0.1. The UpTake has promised to be there turning their hand-cranks at 2:30pmCT if allowed.....
Hope this will hold you for now. I've got the late shift so I can stay a while whle you read over the latest from yust southeast of Lake Wobegon.
Shalom.