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.
Yesterday, Roll Call and TPM were reporting that Norm Coleman may be too worn out to continue his fight to get back into the Senate:
Sources close to Coleman say the former Senator would likely give up his legal battle and accept defeat if the Minnesota Supreme Court decides in Franken's favor.
Minnesota Republican Norm Coleman, in St. Louis to speak at a conference of Midwestern conservatives, said Thursday he's going to wait to see how the Minnesota Supreme Court rules on his appeal of DFLer Al Franken's lead in the U.S. Senate race before he decides his next step.
Talking to reporters after addressing the Conservative Heartland Leadership Conference, Coleman said: "I'm still waiting to hear the court's decision. I'm focused on the Senate seat. I'm not looking past it. But I'm not ruling anything out."
This all is complicated by Tim Pawlenty's decision against seeking re-election as Governor. While Minnesotans overwhelmingly want two Senators, Pawlenty would need to sign the certificate if when the court rules in Franken's favour. If he were running for re-election, Pawlenty would need to sign because his constituency would be the citizens of Minnesota. But, if he's planning on running against President Obama in 2012, his constituency becomes the GOP base, because they are the people who will vote in the primaries. Pawlenty's fallback is that he won't sign if there is a Fed action. Which brings us back to whether or not Norm will want to petition to overturn the Minnesota Supreme Court decision.
It would seem to be a fool's errand. Perhaps he'd be granted standing, but the overriding political consideration is whether Norm wants to have any future in politics. Although I guess he could always run with a slogan like "I'll never give up, I'll fight for you the way I fought for the Senate seat I almost kept." OK, not catchy, but you get the idea.
In other Minnesota news, Michele Bachmann will not be running for Governor.
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.
Tmess has written an interesting article on the potential timing of the next stage of the court battle up in Minnesota. It seems that this is going to go on longer than our last poll indicated. Back in early April (in round numbers) DCW readers thought the contest would end: 32% April, 17% May, 16% June, 7% July, 13% August - December, and 5% each in 2010 and 2011.
Feel free to use the comments to explain if you think once the State Supreme Court rules, that's the ball game, or if there will be a SCOTUS appeal, or if something else happens, such as the Senate just seats him.
Public Policy Polling asked Minnesotans this week whether or not Coleman should give up and go home. Overwhelmingly, they said "Absolutely".
63% feel Norm should concede, while 59% feel that Pawlenty should sign the certificate immediately. This means that a lot of people had a change of heart since last November, since in answer to the question "who did you vote for last year?" it was 41% Franken, 41% Franken, 13% Barkley, and 5% didn't vote/don't remember. I wish they would have broken out that last option, I'm curious as to how many people don't remember for whom they voted. Scary thought, but I'm still curious. So here's my shot:
A Minnesota court has confirmed that Democrat Al Franken won the most votes in his 2008 Senate race against Republican Norm Coleman.
Monday's ruling isn't expected to be the final word because Coleman previously announced plans to appeal to the state Supreme Court. He has 10 days to do so. That appeal could mean weeks more delay in seating Minnesota's second senator.
Last night, Tmess wrote an interesting analysis on what is going on with the judicial panel reviewing the Minnesota Senate ballots. They will rule soon.
For Senator Franken to be seated, Tim Pawlenty will need to sign the election certificate. (The Minnesota Secretary of State has already indicated there will be no problems in that office.) Tim has said that he wants the court process to play out. And he's in a tough position -- who is he least afraid of offending, relative to his future political aspirations?
If he signs after the panel rules, he offends the IIE base. And while the rank and file may not remember past a week or two, the hoi polloi will remember, and that might hurt him in his 2012 Presidential run.
If he doesn't sign, that perturbs a bunch of Minnesotans who believe they are entitled to having TWO Senators in Washington. Those Minnesotans, you know, are his, um, actual current constituency, since Tim's the governor. If he lets this play out ad infinitum, it can hurt him in his gubernatorial bid next year. (My favourite shot at a bumper sticker "Tim doesn't think we need a Senator: do we really need a Governor?")
Tim can probably buy himself a week while the State Supreme Court considers it's fifth dismissal of a 2009 Coleman action. But put it off while the appeal goes to SCOTUS?
And as an aside, remember that Newton's Laws hold: for every action....we wouldn't have this problem if Harry Reid hadn't made such a big deal about requiring an election certificate out of Illinois for Roland Burris. Had that not occurred, Al Franken would be seated sometime today.
Today, the three-judge panel issued its ruling on the major outstanding issue in the case -- absentee ballots. (At the present time, the order is not yet posted on the court's website. It is available via a link on the website of uptake.org, a great group of progressive citizen journalists who broadcast the entire trial on the web).
The key part of the order is that 400 absentee ballots and supporting documentation are to be delivered to the Secretary of State's Office on Monday. After the panel examines those documents to determine which ballots are valid, the valid ballots will be opened and counted on Tuesday. The court created three different categories of ballots. In Category 1, only the return envelopes (with the enclosed secrecy envelope) needs to be sent. In Category 2, the return envelopes and the absentee ballot application (or federal postcard application) needs to be sent. In Category 3, they want the return envelpes and the original voter registration. Most of the ballots are in category 1. Six ballots are in category 2 and one ballot is in category 3.
In reaching this decision, the panel dissed both legal teams a little bit -- noting that the exhibits and spreadsheets were less than adequate. However, they soundly rejected Coleman's arguments to presume that the rejected absentee ballots met certain criteria.
According to the order, the panel began by reviewing the registration of the approximately 1,700 ballots that the two campaigns had proposed to count. It found that only 650 of those ballots were from properly registered voters. After reviewing records to determine if that person voted in-person (which would void the absentee record) and trying to determine if an application was sent, the return envelope signed, and the return envelope witnessed, the panel determined that 400 ballots might be valid.
It appears that the list of ballots includes those covered by previous orders, but I have not actually compared the exhibits to the previous orders.
Once the counting is done on Tuesday, we will be down to waiting for the final judgment. That judgment besides noting the count from Tuesday (to be added to the current total) will need to resolve two outstanding issues.
As the trial enters its second month, the Strib asked a few legal scholars what they thought Norm's chances were:
"It's very hard, the way it's set up right now, for him to be able to win," said David Schultz, a Hamline University law professor specializing in elections.
"Very slim," was how Duke University law Prof. Guy-Uriel Charles characterized Coleman's current chances.
"Coleman is in a bubble running out of oxygen," said Lawrence Jacobs, a University of Minnesota political science professor.
We'll see how it goes this week. I mostly just posted this because I love the line "Coleman is a bubble running out of oxygen." It's just such NICE imagery.
And the hits just keep on coming. From the Star Tribune:
In a ruling that keeps alive Republican Norm Coleman's chances of overturning Minnesota's U.S. Senate recount, a three-judge panel on Tuesday allowed him to bring evidence to trial that as many as 4,800 absentee ballots were wrongly rejected and should now be counted.
The decision expands the evidence that can be considered in the recount trial, giving Coleman the opportunity to put more ballots into play in his effort to erase a 225-vote lead for Al Franken. The Franken campaign had tried to limit Coleman to bringing evidence on only 650 absentee ballots that he cited specifically when he filed his lawsuit challenging the recount results.
In the ruling, the judges said they will focus on rejected absentee ballots cast by voters who complied with the requirements of Minnesota election law or failed to comply because of mistakes by local elections officials.
Oddly, this ruling only covers SOME of the wrongly rejected ballots.
That was yesterday. In today's news, and I am not making this up, Coleman's lawyers want ballots opened which were submitted by people who were not registered to vote. This would be just in case they included voter registration materials with their ballots.
I might be reading this wrong, but it appears to register on election day, the state requires that you provide proof at your polling place, NOT mailed in with any absentee ballot.
First, we have more friendly, cherry-picked Coleman witnesses. Today's winner is college student Peter DeMuth who attends school in Fargo, ND. He didn't want to go vote, but he was willing to come down for trial since he was called by the Coleman legal team, asked if he knew his ballot was rejected, and then whether he supported Coleman. (Which he did). So much for their prior claim of NOT cherry-picking.
DeMuth's ballot was rejected because the signature on his application didn't match the one on his ballot, and he said nobody ever called him to inform him of the problem. Upon his initial direct examination by Coleman lawyer James Langdon, DeMuth explained how it happened: Instead of signing the application with a pen, he downloaded a PDF copy and converted it into a JPG, then typed in the relevant text and "signed" his initials by using the mouse.
"It's hard to get the signature I normally use, so I just used my initials," DeMuth explained.
He then e-mailed the application in and got a ballot days later, which he filled in and signed his full name to in the old-fashioned way. Upon cross-examination, Franken lawyer Kevin Hamilton asked: "Do you have a pen in your dorm-room at Fargo?"
Franken attorney David Lillehaug, in questioning Deputy Secretary of State Jim Gelbmann, introduced correspondence between Coleman's attorneys and state election officials in late December, when the recount was under way. In the letters and e-mails, Coleman's attorneys sign off on the processes established to accept some previously rejected absentee ballots.
One e-mail from Coleman attorney Tony Trimble read: "Even if an absentee ballot was voted in person or witnessed by city and county officials, the lack of a voter signature or a mismatched signature nevertheless constitutes proper grounds for rejecting the ballot under Minnesota law."
Oh, wait, maybe inconsistency isn't a problem for Norm. Hard to tell..
First and foremost, today the House votes on the bailout bill. Our DCW poll, and every other poll I've seen, indicates that it will pass. Not to mention that to pass in the House, the bill will need 218 votes, and the bill, introduced by Patrick Kennedy, has 274 co-sponsors. (Albeit 273 currently, since Kirsten Gillibrand is no longer in the House.)
I'm hoping that some Republicans vote for it, and that 100% of Democrats do, also. My guess is that they will not: there are a bunch of blue dogs (10 - 15 them) who have made noises that they will vote against it. But this is where Whips come in.
Eric Cantor is lying about the bailout bill. Here, too.
________________
From Minnesota, we have Norm Coleman's lawyers putting people on the stand yesterday saying that their ballots were incorrectly rejected.
One of the voters was Douglas Thompson, who admitted under oath that his girlfriend filled out his absentee ballot application for him, signing his name with her own hand and purporting to be himself. His ballot was rejected because the signature on his ballot envelope (his own) did not match the signature on the application (his girlfriend's). The Coleman team's argument appears to be that he is still a legal voter in Minnesota, as the signature on the ballot was his own, even if admitted dishonesty was involved in getting the ballot.
Keep in mind: Thompson's story came up during the direct examination by Coleman lawyer James Langdon. So the Coleman camp fully knew this information and decided to make him into a witness.
So you have to ask yourself - are Coleman's lawyers incompetent for putting someone like this on the stand, or is it something else?
On Monday, the three-judge panel hearing the case ruled that Republican Norm Coleman must subpoena and submit into evidence original rejected absentee ballot envelopes that he argues should be reconsidered and counted.
Coleman's lawyers contend that some 5,000 such ballots should be counted because they are similar to some included in the administrative recount that ended with Democrat Al Franken ahead by 225 votes.
The judges on Monday initially allowed the Coleman campaign to enter photocopies of ballot envelopes into evidence, but changed their minds when Franken lawyers objected that some photocopies had been marked by Coleman campaign workers and others had been inaccurately copied.
