Tomorrow will be an exciting night in the 2010 election cycle. Primaries are being held in Colorado, Connecticut, Georgia and Minnesota. Plus, today early voting begins in Florida. Kendrick Meek will be out at a variety of early voting locations: you can get mobile updates via his web site or follow him on Facebook for locations. Also use one of those locations if you can give a few hours to phone canvass for the only actual Democrat in the Florida Senate race.
Colorado is interesting because in both the Democratic and IIE primaries it is the mainstream of each party running against "insurgents". On our side, Bennet has the support of the White House, the DNC, the DSCC and is an incumbent. Romanoff is attempting to challenge from the left. The latest poll has Romanoff at 48%, Bennet at 45%, and 8% undecided, but it's a SUSA poll. Chart of all recent polling here. On the IIE side, the same SUSA group has Buck at 50%, Norton at 41% with 9% undecided. Full chart here. It will be a nail biter, and we'll be covering it tomorrow night.
The two races in Connecticut to watch are the Democratic primary for Governor, and the IIE Senate primary. Ned Lamont should win this race, but Quinnipiac has it at 45% - 40%, Lamont over Malloy. It's been a weird year for "should win". On the IIE side, we have WWE queen McMahon with a clear polling lead. Either she or Simmons will face Blumenthal, who is running unopposed, and is polling ahead for November.
Georgia is a set of runoffs from the June primaries: mostly IIE House races, but also the IIE gubernatorial runoff, and Spunky has a dog in the race.
Up in Minnesota, the governor's race is open as Pawlenty is done. Four Democrats are vying, as are four Republicans, five Independence party candidates, three independents, and one Green. For reasons that escape me, lunatic fringe member Michele Bachmann is running unopposed, but two Democrats are vying to challenge her.
DemConWatch fave Minneapolis Mayor R.T. Rybak fell short in his bid to get the DFL nod for Governor:
In a night of high emotion and tactical maneuvering, House Speaker Margaret Anderson Kelliher won a fierce DFL endorsement contest on Saturday, moving a step closer to becoming Minnesota's first female governor.
In a grueling day of battling over delegates, Kelliher triumphed over rival Minneapolis Mayor R.T. Rybak after vanquishing a slew of other candidates.
Kelliher moves now to what promises to be an even fiercer primary battle against three other DFLers, as the party attempts to win back the governor's office for the first time in 20 years. ... Earlier, a hush had fallen over the convention when Rybak asked to address delegates shortly after 11 p.m., just before sixth ballot results were to be announced.
"It is time for the greatest party in the history of Minnesota to come together to support Margaret Anderson Kelliher for governor," Rybak said. He also urged Kelliher's three primary rivals, former U.S. Sen. Mark Dayton, former legislator Matt Entenza and Ramsey County Attorney Susan Gaertner to withdraw, leaving Kelliher a clear primary field.
"We cannot be divided any longer," he said. Minutes later, the convention endorsed Kelliher by acclamation.
Fellow progressives, my name is John Marty; I am entering my 24th year in the Minnesota Senate, where I have fought for social and economic justice since day one.
In the Senate, I've championed LGBT rights (I am chief author of marriage equality legislation), I've fought for government ethics reform, I've designed and authored single-payer healthcare (www.mnhealthplan.org), I've taken on powerful interest groups to protect our environment, and I've championed legislation to get living wage jobs and move our economy forward. We now have over 70 co-authors on my single payer legislation -- over a third of the legislature!
I am a Democratic candidate for Governor in 2010 running on true progressive principles, like Senator Paul Wellstone, principles that I hold with deep conviction. In 1994, I was the DFL nominee for governor, but like many other progressives running that year, the Gingrich Revolution and his "Contract ON America." made our attempts unsuccessful."
Never wavering from my progressive principles, we've established viability with a team of supporters focused on reclaiming the governorship. With our election, we can have a national impact across this country.
Imagine a governor with the courage to break the insurance industry's grip on our health care system, passing single payer. Imagine making healthcare a right, not a privilege.
Just imagine what the national implications would be! Imagine the precedent we would set for Democratic Party candidates throughout this country to have a genuine, principled progressive as governor of a state.
Imagine a governor who puts LGBT marriage equality, ethics reform, living wages for workers, and environmental protection, front and center on the state's agenda.
Over next several months, I will reach out here and on other blogs across the country to keep you updated about our campaign. Please take a minute to read this recent column I wrote about the need for political courage. Feel free to share it with friends.
Thank you and I look forward to reading your comments below.
Rasmussen is showing in its latest survey of Minnesota that Governor Tim Pawlenty would only have the votes of 42% of Minnesotans if he were to run for president and win the Republican nomination in 2012. 46% would not vote for him. No, that's not necessarily a vote for Obama because the president's name was not used in the question, but it does provide a sense of just how blue Minnesota is.
Here's the question:
Suppose Governor Tim Pawlenty runs for President in 2012 and wins the Republican nomination. If Pawlenty was the Republican Presidential candidate, would you vote for him? Yes 42% No 46%
This isn't a true trial heat, but it would have been interesting to have seen how the answers to the two questions (the one above and a head-to-head with Obama) would have differed. My hunch is that the difference would have been similar to the difference between polling an incumbent (for any office) against both an actual named opponent or a generic, unnamed one. Look, for instance, at Sen. Burr's numbers in the latest Public Policy Polling survey of the 2010 race for Senate in North Carolina. Burr performs better against named opposition than against Generic Democrat X and I would assume that Pawlenty's numbers above would decrease if we were talking about a ballot question pitting the Minnesota governor against President Obama.
At least in Minnesota. Next April, the Minnesota Democratic-Farmer-Labor (DFL) party will hold a convention where they will likely endorse a candidate for Governor. With at least 10 announced candidates, the endorsement will narrow the field, as a number of candidates (but not all) have already agreed to abide by the endorsement and not run if they don't get it.
The endorsement is a big deal for the candidates and 1200 delegates, and, the best part, is that there are 200 superdelegates. While tracking Minnesota superdelegates is tempting for us here at DCW, luckily the MN Progressive Project is doing a fine job by themselves:
Margaret Anderson Kelliher 14 Rep. Margaret Anderson Kelliher (Minneapolis) Rep. John Benson (Minnetonka) Rep. Kathy Brynaert (Mankato) Sen. Scott Dibble (Minneapolis) Rep. Denise Dittrich (Champlin) Rep. Melissa Hortman (Brooklyn Park) Sen. Linda Higgins (Minneapolis) Rep. Frank Hornstein (Minneapolis) Rep. Jeremy Kalin (North Branch) Rep. Ann Lenczewski (Bloomington) Rep. Diane Loeffler (Minneapolis) Rep. Will Morgan (Burnsville) Rep. Marsha Swails (Woodbury) Rep. Ryan Winkler (Golden Valley)
With their initial announcement tour, MAK's campaign sent out a series of endorser emails. Reports indicate that there were several more legislators included in this blast other than these. Let us know if you got one that indicates an endorsement.
Tom Bakk 14 Sen. Tom Bakk (Cook) Rep. David Dill (Crane Lake) Sen. Keith Langseth (Glyndon) Sen. Ann Lynch (Rochester) Sen. Steve Murphy (Red Wing) Rep. Michael Nelson (Brooklyn Park) Sen. Rick Olseen (Harris) Sen. Kathy Saltzman (Woodbury) Sen. Tom Saxhaug (Grand Rapids) Sen. Rod Skoe (Clearbrook) Sen. Dan Skogen (Hewitt) Sen. Dan Sparks (Austin) Sen. Jim Vickerman (Tracy) Sen. Chuck Wiger (Maplewood)
Matt Entenza 8 Congressman Keith Ellison Sen. Dick Cohen (St. Paul) Rep. Sheldon Johnson (St. Paul) Rep. Gene Pelowski (Winona) Rep. Jeanne Poppe (Austin) Rep. Cy Thao (St. Paul) Rep. Tim Mahoney (St. Paul) Rep. Carlos Mariani (St. Paul)
Susan Gaertner 1 Rep. Paul Gardner (Shoreview)
Steve Kelley 1 Congresswoman Betty McCollum
John Marty 3 Sen. John Marty (Roseville) Sen. Sharon Erickson Ropes (Winona) Rep. Mindy Greiling (Roseville)
Paul Thissen 2 Rep. Paul Thissen (Richfield) Rep. Linda Slocum (Richfield)
Tom Rukavina 2 Rep. Tom Rukavina (Virginia) Rep. Al Juhnke (Willmar)
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
This week has been a states rights week in both Minnesota and Texas. (For long time readers, that would include St. Paul and Austin, and you know why (grin)).
Tim Pawlenty is flirting with the idea of refusing to abide by any health care changes enacted by the Federal government. While I'm pretty sure that Amy Klobuchar and Al Franken have some thoughts on that, but they have seemingly decided that discretion is the better part of valour.
It all started on Thursday night, during a radio call-in show, when Tim was asked if he'd evoke states rights to prevent enactment, and he said it was a possibility.
"Depending on what the federal government comes out with here, asserting the 10th Amendment may be a viable option, but we don't know the details," said Pawlenty. "We can't get the president to outline what he does or doesn't support in any detail. So we'll have to see. I would have to say that it's a possibility."
Pawlenty also said he hopes Republican governors will be more assertive about state's rights, and even bring up lawsuits to challenge the federal government.
He has since backtracked somewhat. He said he won't really sue the Feds, nor try for getting Minnesota to secede from the Union. But the question is who wins when those rights reserved to the states or the people conflict? That is, if most people in Minnesota WANT health care reform and support any legislation emanating from the Federal government but Tim (as the state) says no, who wins? Earlier this year, Mark "I left my heart in Argentina" Sanford refused Federal stimulus funds that everyone else wanted, and his desires were struck down by the courts. Would Tim take on the Feds as that plays to the wingnut base he wants in 2012, or would he honour his responsibility to his constituency and allow Federal law to prevail?
Moving south, we come to Texas. There, Rick Perry is deploying both Texas Rangers and Texas National Guard troops to the Mexican border to deal with cross-border crime. The state will legislate the funds to send the troops, and they are not saying WHERE the troops will go, so as to not compromise the mission.
On the one hand, there is a lot of cross-border violence due primarily to the drug trade. And Texas has requested Federal troops to help quell the violence.
But here's my question: what happens if those troops cross the border? I'm thinking specifically about Article 1, Section 10, which ends with:
No State shall, without the Consent of Congress, lay any duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.
If they crossed into Mexico, would Texas be in violation of this section? Since Mexico has not invaded Texas, could Rick's actions be considered an act of war?
Norm must pay $94,783 to future-Senator Al Franken to cover court costs. This decision was handed down yesterday. It doesn't cover the cost of records, nor is it the full amount the Franken camp had requested. Norm owes interest from now until he pays.
Still to be decided: whether Norm must pay Franken's attorneys' fees. Oh, yes, and the outcome of who gets to be Senator...(grin)
Matt sent me a note indicating that the Minnesota court has a propensity for Thusday decisions, so perhaps this will be the day. Cannot come soon enough.
Having had several days to think about Monday's arguments, some thoughts about the arguments and what happens next.
First, it was pretty clear that the Minnesota Supreme Court were not buying Coleman's due process argument. (Basically, that the trial court's interpretation of Minnesota law was an impermissible change in the law because it may have differed from how some counties where interpreting the law.) Since the argument is, in some ways, an attack on the traditional judicial role of making binding interpretations of the law, this should not be that surprising.
Second, while the Supreme Court seemed to be a little bit more accepting of some type of equal protection claim, the one that seemed to be most accepted by the Supreme Court was the claim about improperly counted ballots. However, even on this claim, the Court seemed to have serious concerns about the adequacy of the record made on this issue by the Coleman team. In addition, the Coleman team seemed to be reluctant to push this approach (perhaps for fear of the lack of a remedy). The Coleman team would rather the equal protection theory be used to compel additional ballots to be counted rather than to question ballots that were counted.
Third, in what may become the recurring theme of the opinion, the Court seemed to have real problems with the way that Coleman tried to prove his claims. As folks may recall fromt he trial, the Coleman approach seemed to be to put on just a little bit of evidence and then ask the panel to infer a lot of additional facts from that little bit of evidence. The Franken team was much more methodical at trial. Given the standard of review on these issues, this approach could ultimately doom the Coleman appeal.
As far as the timing of the decision, I think this opinion may take a little bit longer than other folks have been projecting for several reasons.
First, there is a somewhat lengthy record to be reviewed. That simply takes time. Even a simple opinion with a minimal record on one minor legal issue can take several days to write. Given the length of this record and the complexity of these issues, I would be shocked at anything earlier than the end of the month.
Monday morning at 9AM CDT, the Minnesota Supreme Court will hear oral arguments in the Senate Election Contest. For those wanting to see and hear the argument, the Uptake has indicated that they will have live coverage. I am not sure if the Minnesota Supreme Court will have live coverage, but they will have the argument in their archive later. The Minnesota Legislature had live coverage of the canvassing board. As they are now out of session, they might have coverage of this argument.
For those who have never seen or heard an oral argument before an appellate court before, oral argument is substantially different from what most people see in a trial court when they are a juror, a party, or a witness. In a trial court, judges tend for the most part to let lawyers try their cases with minimal interruption from the bench -- especially in a jury trial. Oral argument is about the judges on the court making sure they understand what the parties are saying. As such, there tends to be questions from the judges to the parties. How much those questions dominate depends on the judges with attorneys frequently talking about a hot bench (in which the judges have a lot of questions and take over the argument) and a cold bench (in which the lawyers get few questions).
Questions during oral argument tend to fall into four questions.
The first category are questions about the evidence supporting the claims of the party. As an appellate court reviews the decision of the trial court based on the evidence presented at the trial court, the judges need to know what evidence was presented to the trial court in support of the arguments being made on appeal.
The second category is questions about the law. The parties are asserting legal principles. The judges want to know what case or statutory provision provides the strongest support for that argument. For a party seeking to stretch the law a bit, these can be dangerous questions that can trap them unless they are clear that a case is only somewhat close and that they are asking the court to go the next step.
The third category is questions designed to clarify the argument. What might seem obvious to the attorney for a party who has been involved in the case for 8 months may not be obvious to the five judges who just got the case four weeks ago.
The final category is about the rules that the party seems to be proposing. Judges want to know that if we agree with you on what the rule is for this type of case how will that impact the system. When there are two equally reasonable interpretations of a statute or prior case, judges tend to shy away from the one that would cause major disruption. (To some extent, this is what Judge Sotomayer meant when she said Appellate Courts make policy.)
Earlier this week, Senator Franken's legal team filed his brief with the Minnesota Supreme Court. Today, former Senator Coleman's legal team filed their reply brief. (In most states, the party appealing gets to file a reply brief which is intended to respond to issues raised by the respondent's brief that were not covered in the initial brief.) Now that all briefs have been filed, the parties will get one last chance during oral argument to persuade the Minnesota Supreme Court that they are right. I will try to have a post prior to that argument highlighting what to look for in the argument, but for now a summary of the issues as framed by the briefs.
First, as is common in appellate practice, a good part of these briefs have to do with garden variety "inside baseball" legal issues. These issues include things like the standard of review, "prejudice" from trial court rulings, and "cumulative" evidence. While boring as hell to non-lawyers, it is these issues which decide most appeals (and in fact what makes many appeals, such as Coleman's, frivolous).
One of the main issues is the standard of review. Quite simply, former Senator Coleman had the burden of proof at the trial court. The trial court decided against him. On appeal, the Minnesota Supreme Court is supposed to treat disputed factual issues in favor of Senator Franken. That hasn't stopped former Senator Coleman from ignoring evidence that supports Senator Franken, but the Minnesota Supreme Court should dispose of those claims quite easily. Essentially, unless the evidence was more one-sided than it appears, former Senator Coleman should not prevail on any claims that the panel got the facts wrong.
There are two other key issues of the procedural type that may come into play.
First, after allowing extensive evidence for a month on how local authorities handled absentee ballots, the trial panel shut the process down and had Coleman make an "offer of proof" regarding other evidence that he wanted to present on the disparity in local practices. For the appeal, the issue is whether this other evidence was substantial enough (e.g. a statistician who would merely note that rejection rates for absentee ballots seemed to be different in different counties suggesting some unspecified non-random factor was involved) and different enough (e.g. evidence from additional counties) that the panel was mistaken to not allow the evidence to be presented. Coleman, of course, argues that the evidence should have been allowed. Franken argues that there was enough evidence to demonstrate some degree of variation in how the counties handled absentee ballots and, as such, additional evidence would not have changed the over-all picture.
Second, at the start of the process, Coleman asked to be allowed to "inspect" election materials in certain unspecified precincts. The panel refused to allow this on the theory that it wasn't needed (as the parties had the opportunity to thoroughly inspect ballots during the administrative recount). Coleman wants to claim on appeal that this limitation hindered his ability to present the "duplicate" ballot issue. Franken's repsonse noted that Coleman had the unlimited ability to bring in any witness and any documents related to this issue that he desired. As such, the lack of an inspection did not hinder his ability to present a case on this issue in any manner.
There are also issues about which claims may have been waived by Coleman -- either expressly or by failure to raise them in a timely manner in front of the trial court.
The last issues have to deal with decisions that were made by the canvassing board during the re-count. The reality is that, compared to the other issues, these issues are relatively minor with little potential impact. On the other hand, it would be rather embarrassing to win some of the other issues, have additional ballots counted, and still lose by 20 votes because you failed to raise these issues on appeal.
1) Missing Ballots (the Dinkytown 132) -- This issue is almost a purely legal issue. The evidence both before the canvassing board and the election contest panel was that an envelope containing approximately 132 ballots went missing from one Minneapolis precinct. The question is what do you do when the ballots aren't there to be recounted. The Canvassing Board and the election panel said that, when the evidence is clear (as it was here) that the ballots existed and can't be found after diligent search, you revert back to the machine count. The position of the Coleman team is that the only ballots that can be counted during a recount are ballots that are physically there to be recounted and that the machine counts can't be used under any circumstances.
Apparently, there are no appellate decisions on this issue in Minnesota. A previous election panel believed that you could not revert back to the machine count, but that decision is not binding on the Minnesota Supreme Court. There is room for a compromise position (e.g. determine the difference between the election day machine count and a machine count of the remaining ballots and then hand count the remaining ballots) but basically the Minnesota Supreme Court can do whatever they want on this issue. The question is which solution is the least unfair to the voters -- tossing out 132 ballots or not doing a hand recount to determine the actual intent of the ballots that are still there.
2) Unmatched ballots -- Basically, during the recount, the decision was made to count original ballots instead of duplicates. (Duplicates are made when for whatever reason the original can't be read by the machine so that there is a ballot for the machine to count. Both the original and duplicate are supposed ot be labeled as the original or the duplicate with both having matching identifying numbers) In some precincts, during the recount, originals or duplicates were found that did not have a match.
This issue comes down to a question of presumptions and inferences. If the judges had done what they were supposed to do, you should not have unmatched ballots. From a factual standpoint, there are several equally legitimate ways that this mistake could be made. First, you could record the votes on the duplicate, label the original, but fail to label the duplicate. Second, you could label the original and forget to make a duplicate. Third, you could misplace the original or the duplicate. (There are probably other ways as well, but these are sufficient to demonstrate the issue. Coleman's team wants the court to assume that the first scenario must be what happened in the absence of evidence to the contrary.
The second big issue likely to be raised in the appeal is absentee ballots. (Some of the issue is included in the equal protection issue, so this deals with the pure state law aspects of the appeal.)
There are two major sub-issues in the appeal.
The first is the question of strict compliance versus substantial compliance. In seeking to have approximately 4,400 absentee ballots counted, the Coleman campaign sought to have a standard of substantial compliance. Under this theory, mistakes made by the voter in seeking and completing the absentee ballot should be ignored. As long as the voter was registered and hadn't voted on election day, the absentee ballot should be counted.
The panel held that state law established a series of requirements that absentee voter had to meet to be eligible to cast an absentee vote.
The second sub-issue has to do with legal presumptions and inferences. The panel required individual evidence as to individual applications. The Coleman team wanted to be able to use the ballots which had been found to be valid and infer from those ballots that since most ballots complied with certain requirements that all ballots did. In essence, under this theory, because 95% of absentee ballots were valid, the 5% that were invalid should be treated as valid because most of the ballots were valid. (Yes, that reasoning is very, very circular.)
If the Minnesota Supreme Court finds in favor of Coleman on either issue (especially the substantial compliance issue), the case would go back to the panel to review the remaining 3,000 ballots that were not directly presented to them at the initial hearing. Out of the 2,000 ballots that they were originally asked to consider, only 700 were from registered voters. Assuming a similar rate in the remaining 3,000 (plus counting the 300 that weren't counted from those 700), that would add about 1,400 absentee ballots into the pile to be counted.
While this issue has been good for the Coleman p.r. team, I really do not see much chance of prevaling on either sub-issue.
Well since the Minnesota Supreme Court decided to give the parties plenty of time to do briefing, that gives me a chance to play a little arm chair psychic and predict the arguments that will be made. (Ok, it's not too difficult since these were the same issues that they have been arguing for the past 100 days.)
Equal Protection is the big claim of this appeal. Primarily because it is the only issue that could actually get the case in front of the U.S. Supreme Court as the only federal issue in the case. There are three basic variations on equal protection in this case. Sometimes, the Coleman team combines these three theories into a refrain of "different standards were applied by the panel than were applied on election day."
The first variation is the Bush-Gore "everything is broken" theory. The gist of this theory is that, even though the statute on absentee ballots seems to provide a uniform standard, the local election authorities each applied a slightly different standard. In some cases, this was a question of adequate resources. In other cases, it was just some counties being very, very strict and others accepting slightly imperfect ballots. Taken to its logical extreme (and the Coleman folks are close to that extreme), this theory would hold that any imperfect application of a uniform standard is a violation of equal protection. Since every election in this country relies on local officials and local underpaid volunteers, this theory, if accepted by the U.S. Supreme Court would invalidate every half-way close election. (Unless, of course, the U.S. Supreme Court again said that its ruling applied to this election and this election only, but I doubt that Justice Kennedy wants to walk the Court into that thicket again.) The position taken by the panel is that Bush-Gore is satisfied by having clear uniform rules (which Florida didn't) and proper training of the local people who have to implement those rules.
Fellow progressives, my name is John Marty; I am entering my 24th year in the Minnesota Senate, where I have fought for social and economic justice since day one.
Tim Pawlenty is flirting with the idea of refusing to abide by any health care changes enacted by the Federal government. While I'm pretty sure that Amy Klobuchar and Al Franken have some thoughts on that, but they have seemingly decided that discretion is the better part of valour. 
