The Minnesota Supreme Court affirmed the ECC's ruling, which declared Franken the winner, late Tuesday morning. The 32 page order, issued unanimously by the five presiding justices, marked the end of Minnesota's 2008 Senatorial Election. An excerpted summary of the order is presented below followed by Norm Coleman's concession speech: Filed: June 30, 2009 ... SYLLABUS 1. Appellants [Coleman] did not establish that, by requiring proof that statutory absentee voting standards were satisfied before counting a rejected absentee ballot, the trial court's decision constituted a post-election change in standards that violates substantive due process. 2. Appellants did not prove that either the trial court or local election officials violated the constitutional guarantee of equal protection. 3. The trial court did not abuse its discretion when it excluded additional evidence. 4. Inspection of ballots under Minn. Stat. § 209.06 (2008) is available only on a showing that the requesting party cannot properly be prepared for trial without an inspection. Because appellants made no such showing here, the trial court did not err in denying inspection. 5. The trial court did not err when it included in the final election tally the election day returns of a precinct in which some ballots were lost before the manual recount. Affirmed. OPINION PER CURIAM. [Unanimous 5-0 decision.] Appellants, incumbent Republican United States Senator Norm Coleman and Cullen Sheehan, filed a notice of election contest under Minn. Stat. § 209.021 (2008), challenging the State Canvassing Board's certification that Democratic-Farmer-Labor challenger Al Franken was entitled to receive a certificate of election as United States Senator following the November 4, 2008 general election. After a trial, the three-judge trial court we appointed to hear the election contest issued its findings of fact, conclusions of law, and order for judgment, concluding that Franken received 312 more legally cast votes than Coleman and that Franken was entitled to a certificate of election for the office of United States Senator. The question presented on appeal is whether the trial court erred in concluding that Al Franken received the most legally cast votes in the election for United States Senator. Because we conclude that appellants have not shown that the trial cour's findings of fact are clearly erroneous or that the court committed an error of law or abused its discretion, we affirm. ... I We turn first to the question of whether Coleman's right to substantive due process under the United States Constitution has been violated. Whether Coleman's right to substantive due process was violated is a question of law, which we review de novo. State v. Netland, 762 N.W.2d 202, 207 (Minn. 2009). ... We conclude that our existing case law requires strict compliance by voters with the requirements for absentee voting. Thus, we reject Coleman's argument that only substantial compliance by voters is required. Having rejected this argument, we also conclude that the trial court's February 13 order requiring strict compliance with the statutory requirements for absentee voting was not a deviation from our well-established precedent. ... II We next examine Coleman's argument that the constitutional guarantee of equal protection was violated in this case.12 Coleman's equal protection argument is two-fold. First, he argues that the differing application and implementation by election officials of the statutory requirements for absentee voting violated equal protection. Essentially, Coleman contends that similarly situated absentee ballots were treated differently depending on the jurisdiction in which they were cast and that this disparate treatment violated equal protection. Second, Coleman contends that equal protection was violated when the trial court adhered to the statutory requirements for acceptance of absentee ballots, in contrast to the practices of local jurisdictions during the election. ... The trial court found that election judges applied the election laws in a consistent and uniform manner. The court found that election jurisdictions adopted policies they deemed necessary to ensure that absentee voting procedures would be available to their residents, in accordance with statutory requirements, given the resources available to them. The court also found that differences in available resources, personnel, procedures, and technology necessarily affected the procedures used by local election officials reviewing absentee ballots. But the court found that Coleman did not prove that these differences were calculated to discriminate among absentee voters. Our review of the record convinces us that the trial court's findings are supported by the evidence and are not clearly erroneous. As a result, we conclude that Coleman did not prove his equal protection claim. ... The trial court concluded that Bush is distinguishable in several important respects and, as a result, does not support Coleman's equal protection claim. We agree. In Bush, the Supreme Court specifically noted that it was not addressing the question of "whether local entities, in the exercise of their expertise, may develop different systems for implementing elections." 531 U.S. at 109. Variations in local practices for implementing absentee voting procedures are, at least in part, the question at issue here. As previously noted, the trial court here found that the disparities in application of the statutory standards on which Coleman relies are the product of local jurisdictions" use of different methods to ensure compliance with the same statutory standards; that jurisdictions adopted policies they deemed necessary to ensure that absentee voting procedures would be available to their residents, in accordance with statutory requirements, given the resources available to them; and that differences in available resources, personnel, procedures, and technology necessarily affected the procedures used by local election officials in reviewing absentee ballots. As we noted previously, Coleman has not demonstrated that these findings are clearly erroneous. ... III Coleman next contends that the trial court improperly excluded (1) evidence of absentee ballots accepted on election day and in the manual recount that would not satisfy the standards established by the trial court, and (2) evidence of disparities among jurisdictions in their application of the statutory standards governing absentee ballots. We review the trial court's evidentiary rulings for abuse of discretion. See Peterson v. BASF Corp., 711 N.W.2d 470, 482-83 (Minn. 2006). ... In enacting section 204C.13, subd. 6, particularly in light of our interpretation of the same language in Bell, the legislature made a policy decision to limit challenges to an absentee ballot, once it is separated from its return envelope and deposited in the ballot box, to challenges based on the face of the ballot. We conclude that the trial court ruled correctly that Minnesota law provides no remedy for wrongly accepted absentee ballot return envelopes once those envelopes have been opened and the ballots inside deposited in the ballot box. Accordingly, we conclude that the court did not abuse its discretion in excluding the evidence. ... As we have explained, in order to prevail on his equal protection claim, Coleman was required to prove intentional or purposeful discrimination on the part of either local election officials or the trial court. But Coleman does not contend that the additional evidence he sought to introduce would have proven intentional or purposeful discrimination on the part of any election officials or the trial court. We therefore conclude that in excluding this evidence, the court did not abuse its discretion. IV Coleman also claims that the trial court erred in denying his petition for inspection of ballots for certain precincts in which he alleges that double-counting of ballots occurred. The trial court concluded that Coleman had not met his burden to show that an inspection was needed to prepare for trial, noting Coleman's concession at the hearing on the petition that he would be able to prove his case without an inspection, by calling election judges as witnesses and by subpoenaing voter rolls and ballots. The court also concluded that inspections under Minn. Stat. § 209.06 (2008) are limited to the ballots themselves and do not include voter rolls or other election materials sought by Coleman. Finally, the court noted that the parties had already reviewed the ballots during the manual recount. ... Coleman conceded at the hearing on the petition for inspection, and does not dispute here, that he could prove his claim of double-counting by subpoenaing the ballots and election materials and by subpoenaing witnesses to testify. This concession negates any claim that he made the required showing of necessity and any contention that he was prevented from proving his case by denial of the inspection. Coleman called no witnesses with direct knowledge of the handling of duplicate ballots in the relevant precincts, but he did introduce at trial voter rosters, envelopes from accepted absentee ballots, copies of ballots challenged during the manual recount, and machine tapes from the identified precincts in which he alleges double-counting of absentee ballots occurred. On appeal, Coleman has identified nothing additional that an inspection of ballots under section 209.06 would have produced.21 We therefore hold that the trial court did not abuse its discretion in denying the petition for inspection. V Finally, Coleman contends that the trial court erred when it ruled that missing ballots from Minneapolis Ward 3, Precinct 1, were properly included in the State Canvassing Board's January 5, 2009 certification of legally cast votes. During the manual recount, election officials could locate only four of the five envelopes of ballots from Minneapolis Ward 3, Precinct 1. Voting machine tapes showed a total of 2,028 ballots cast and counted in the precinct on election day, but only 1,896 ballots from the precinct were available for the recount, a difference of 132 ballots. The State Canvassing Board determined that an envelope of ballots had been lost and, rather than certify only 1,896 votes in the recount, accepted the election day returns for that precinct. ... Coleman articulates no compelling reason why that same principle should not apply here. The ballots are missing, but Coleman introduced no evidence of foul play or misconduct, and the election day precinct returns are available to give effect to those votes. We hold that the trial court did not err in ruling that the election day precinct returns for Minneapolis Ward 3, Precinct 1, were properly included in the tally of legally cast votes. VI For all of the foregoing reasons, we affirm the decision of the trial court that Al Franken received the highest number of votes legally cast and is entitled under Minn. Stat. § 204C.40 (2008) to receive the certificate of election as United States Senator from the State of Minnesota. Affirmed. Source: Supreme Court Order via MNCourts.gov [PDF] There are several interesting statements by the MN Supreme Court Justices, most notably the second excerpted paragraph under section III, but any relevance was minimized following Norm Coleman's fifteen minute address to the people of Minnesota: Within his concession speech, Norm Coleman congratulated "Senator Franken," thanked his supporters and addressed his political future with the following statement: "soon, I presume sometime, we'll get through July fourth, sometime next week. We'll talk a little about what my future is." Coleman also suggested that Governor Tim Pawlenty would sign the Election Certificate because "for all Minnesotans, this is a time to look forward." Al Franken is scheduled to address the media at 4:15 CT live on CSPAN. Update [4:24 PM CT]: "I'm not going to Washington to be the 60th Democratic Senator, I'm going to Washington to be the 2nd Senator from the State of Minnesota." Update [4:26 PM CT]: "I can't tell you when I'll be seated, but I think it'll be early next week." Update [4:27 PM CT]: "He [Coleman] couldn't be more gracious." Update [4:28 PM CT]: Al will be a member of the following committees, "Health Education Labor and Pensions which I'm very happy about. I'll be on Judiciary, I'll be Indian Affairs which I asked for and Aging; which I think dovetails nicely with Health Education Labor and Pensions." Update [4:29 PM CT]: "I will be entering with a great deal of humility." Update [4:30 PM CT]: "I hope we do get President Obama's agenda through." Update [4:32 PM CT]: "This [process] has been as thorough and as transparent and painstaking as possible." Update [4:33 PM CT]: "I'm going to be working for every Minnesotan and I'm going to be thinking about that everyday when I wake up." Update [4:33 PM CT]: "I probably won't be in Washington until early next week." Update [4:35 PM CT]: Franken's complete speech is available below: Franken will become the 100th United States Senator "early next week." The legal process is over, Minnesota has its second Senator.

Published on June 30th at 2:03 PM CT :: 0 Comments

The Minnesota Supreme Court is still deliberating on Norm Coleman's latest appeal in the drawn out Senate Election of 2008; but at this point their ruling merely appears to be a legal formality. Even Minnesota's Republican Governor, Tim Pawlenty, has indicated his intent to adhere to the MNSC's ruling by signing the Election Certificate should Al Franken be declared the victor. With a ruling likely to come this week or next, Al Franken seems poised to become the legal victor, and there isn't anything anybody can do about it. Michael Brodkorb of MinnesotaDemocratsExposed.com does however seem intent on altering the public's perception. On June 8th, just five days before his election as the new Deputy Chair of the Minnesota Republican Party, he filed public data practice requests with seven of Minnesota's counties seeking photocopies of rejected absentee ballots. Mr. Brodkorb filed his two page request with the counties of Anoka, Carver, Dakota, Hennepin, Olmsted, Sherburne and Washington, and the cities of Edina, Minnetonka, Orono and Plymouth. The following excerpt contains the request sent to Anoka County: Michael Brobkorb

[Poorly Redacted Address] June 8, 2008 Rachel Smith

Anoka County

325 E Main St W130

Anoka, MN 55303-2465

Re: Data Practices Request This correspondence is a request for access to public information and data relating to the 2008 general election for United States Senator in your county under the Minnesota Government Data Practices Act ("MGDPA"), Minnesota Statutes, Chapter 13. Minnesota Statutes § 15.17 requires all government entities to make and maintain all records relative to their official activities. Minnesota Statutes § 13.03, subdivision 1 requires all government entities to keep records that contain government data in a way (or ways) that makes the data easily accessible for convenient use. The undersigned requests copies of that portion of the front side of all ballots relative to the 2008 United States Senate general election contained within rejected absentee ballot envelopes in your possession that were not submitted late and were not submitted by persons who otherwise voted in the 2008 general election (either in person or by replacement absentee ballot). This request does not seek to have the undersigned open or unseal any absentee ballot envelopes; to the extent any such envelopes have not yet been opened, the undersigned requests that an election judge do so. This request also does not seek access to any data regarding any individuals, including voter registration applications, voter registration lists or any other information related thereto and subject to restricted access under Minnesota Statutes § 201.091. Finally, this request does not seek copies of the absentee ballot envelopes themselves or any accompanying materials, such as absentee ballot applications. In short, this request in no way seeks to ascertain which person(s) voted for which candidate(s). The request can be easily complied with while protecting the secrecy of the ballots. This information/data is clearly public information under the MGDPA. As you know, Minn. Stat. § 13.03, subdivision 1 provides that all government data collected, created, received or maintained is public information unless classified by statute, federal law or temporary classification as confidential, private, nonpublic or protected nonpublic data. No such classification exists for the information requested. No Minnesota statute provides that the ballots contained within uncounted rejected absentee ballot envelopes is nonpublic or private information if opened by an election judge; although Minnesota law requires you to securely maintain all election materials, no Minnesota statute exists which denies the public the right to inspect and/or receive copies of the ballots contained within rejected absentee ballot envelopes. As the agency with jurisdiction over all ballots and election materials within your county, it is your duty to comply with data practices requests under the MGDPA and the undersigned is not aware of any statutory or other authority which prohibits you from opening the rejected absentee ballot envelopes while maintaining the secrecy of each person's intended vote for the purposes of complying with this request. There is simply no risk whatsoever that the secrecy of any ballot(s) will be compromised. Again, this request seeks only a photocopy of the section of ballots relative to the 2008 general election for United States Senator contained within certain rejected absentee ballot envelopes in your possession or under your control and in no way seeks to ascertain which person(s) voted for which candidate(s). ... Thank you. Sincerely, Michael B. Brodkorb [emphasis added] Source: Data Practices Request to Anoka County via Minnesota Democrats Exposed [PDF] There are several catastrophic assumptions and falsehoods located within Brodkorb's meager request. I've bolded the fallacious and contradictory portions from his request above and will now address each item below. Let's begin by addressing the issue raised within the first bolded portion; the need for an election judge to open the requested ballots. This triggers two questions, the first of which I will now address. It is necessary for an election judge to open the currently sealed and rejected absentee ballots because of MN § 13.37: 13.37 GENERAL NONPUBLIC DATA. Subd. 2. Classification. The following government data is classified as nonpublic data with regard to data not on individuals, pursuant to section 13.02, subdivision 9, and as private data with regard to data on individuals, pursuant to section 13.02, subdivision 12: Security information; trade secret information; sealed absentee ballots prior to opening by an election judge; sealed bids, including the number of bids received, prior to the opening of the bids; parking space leasing data; and labor relations information, provided that specific labor relations information which relates to a specific labor organization is classified as protected nonpublic data pursuant to section 13.02, subdivision 13. [emphasis added] Source: 13.37, 2008 Minnesota Statutes via Minnesota Office of the Revisor of Statutes 13.02 COLLECTION, SECURITY, AND DISSEMINATION OF RECORDS; DEFINITIONS. Subd. 9. Nonpublic data. "Nonpublic data" means data not on individuals that is made by statute or federal law applicable to the data: (a) not accessible to the public; and (b) accessible to the subject, if any, of the data. ... Subd. 12. Private data on individuals. "Private data on individuals" means data which is made by statute or federal law applicable to the data: (a) not public; and (b) accessible to the individual subject of that data. Source: 13.02, 2008 Minnesota Statutes via Minnesota Office of the Revisor of Statutes Minnesota § 13.37 essentially states that unopened absentee ballots are private data and are therefore inaccessible to the general public. The subject of this request, rejected absentee ballots, are currently unopened and therefore qualify for protection under § 13.37. Brodkorb may think he is circumventing § 13.37 by explicitly asking the election judges to open his requested ballots, but data practice requests do not fall within the duties of elections judges with regard to opening absentee ballots. In fact the only mechanism by which absentee ballots can be opened by an election judge falls within the jurisdiction of § 203B.12: 203B.12 ELECTION JUDGES TO RECEIVE AND COUNT BALLOTS. Subd. 4. Placement in container; opening and counting of ballots. The ballot envelopes from return envelopes marked "Accepted" shall be placed by the election judges in a separate absentee ballot container. The container and each ballot envelope may be opened only after the last regular mail delivery by the United States postal service on election day. The ballots shall then be initialed by the election judges in the same manner as ballots delivered by them to voters in person and shall be deposited in the appropriate ballot box. [emphasis added] Source: 203B.12, 2008 Minnesota Statutes via Minnesota Office of the Revisor of Statutes The rejected absentee ballots requested by Brodkorb are not marked with "Accepted" by definition because they were "Rejected" under § 203B.12 subd 2. As a result of their current "Rejected" status, the absentee ballots in question would never qualify for the "separate absentee ballot container" and could therefore never be opened by an election judge. At this point, the first half of Brodkorb's argument is clear; he wants election officials to open his requested rejected ballots. Brodkorb then justifies this request by stating, in the second bolded portion, that the ballots then become public data if they are opened by election officials. It doesn't make a whole lot of sense; he is attempting to justify one action with another. The rejected ballots are private data, so to make them public, an election judge needs to open them; but an election judge cannot open them because they are rejected. Brodkorb's entire argument is circular and without merit. After seventeen days, Brodkorb posted a follow-up to his data practice requests: I have received responses to all of my requests for public data and every county and city has denied my request. I'm reviewing my options and I'll have updates on this subject in the next 24 hours on Minnesota Democrats Exposed. Source: Update: MDE Exclusive: Data Practices Request Filed Today Requesting Copies of Certain Rejected Absentee Ballots via Minnesota Democrats Exposed Brodkorb's request appears to have been flatly denied by each jurisdiction. He does however have at least one other option. Brodkorb could bring forth an action to compel discovery of these rejected ballots in accordance with MN § 13.03 subd. 6. I don't know how this would work, or if rejected absentee ballots even qualify for discoverability. It will be interesting to see if Brodkorb continues to pursue these data practice requests when he becomes the new Deputy Chair of the Minnesota Republican Party this Wednesday.

Published on June 29th at 1:52 PM CT :: 0 Comments

While the MN Supreme Court deliberates on Norm Coleman's latest appeal, the Election Contest Court addressed and resolved the issue of disbursements; the monetary reimbursement of court associated fees. The legal process began shortly after the ECC declared Franken the victor with the first disbursement filing arriving on April 28th from the Franken campaign; just 15 days after the court's final judgment. The Franken document totaled 394 pages with 384 pages of exhibits. The first ten pages contained the body of the filing while the remaining 384 pages, of exhibits, were found within a gray three ring binder. The digitization of the exhibit portion was just completed this morning by the Ramsey County Court Administration Office. Prior to purchasing the first ten pages, and then later receiving the exhibits from a Ramsey County Court Administrator, no portion of this document could be publicly accessed without making a physical trip to the Ramsey County Court House. The entire document has been converted to PDF for public consumption below with the highlights excerpted: David L. Lillehaug, being duly sworn, on oath says that he is one of the attorneys for Contestee Al Franken ("Contestee") in the above entitled action and certifies that he has investigated the costs and disbursements claimed herein, and that the following is a true statement of the taxable costs and disbursements incurred by Contestee; and that each and every item thereof has actually and necessarily been paid or incurred in this action. Documents supporting each of Contestees' costs and disbursements are attached. Statutory Costs $205.50 (Minn. Stat. § 549.02, subd. 1) Court Filing Fees $1,130.00 (Minn. Stat. § 357.021) (Tab A) Deposition Transcripts of Testifying $7,315.30 Witnesses (Minn. Stat. § 357.31) (Tab B) Written Deposition Transcripts $812.50 Entered Into Evidence (Minn. Stat § 357.31) (Tab C) Deposition Transcripts Entered $3,200.70 Into Evidence (Minn. Stat. § 357.31) (Tab D) Trial Transcripts $35,382.55 (Abraham v, County of Hennepin, 622 N.W.2d 121, 129) (Minn. Ct. App. 2001) (Tab E) Trial Exhibits $26,576.38 (Minn. Stat. §§ 357.31 and 357.315) (Tab F) Data Practice Requests/Subpoenas $59,078.89 (Minn. Slat. § 357.31) (Tab G) Trial Technology & Equipment $6,031.23 (Minn. Stat. § 549.04) (Tab H) Photocopying & Service of Trial Motions $2,152.51 (Minn. Stat. § 549.04) (Tab I) Trial Subpoenas & Witness Fees (Tab J) $19,625.07 Total Costs and Disbursements $161,510.63 Dated: April 28, 2009 Source: Contestee's Bill of Costs and Disbursements via VoteForAmerica.net [PDF] [Exhibits: 394 Pages, 12.7 MB, PDF] The list above contains the itemized cost for each subheading for which the Franken campaign is seeking reimbursements from the losing party; in this case, the Coleman campaign. It's also pertinent to note that the Franken campaign did not provide a rational for why any item should be reimbursed; they were simply presenting the ECC with a probable list of expenditures which they believe qualify for reimbursement. On another note, the projector used during the ECC trial was actually provided by the Franken campaign. The State of Minnesota does not provide a projector for use in their most prestigious court room; this is absolutely astonishing to me. I also found it humorous that the Franken campaign made a roughly $600 purchase of printing related goods from BestBuy (on page 329); BestBuy was the 14th largest corporate supporter to Norm Coleman according to OpenSecrets.org for the period from 2007-2008. The Coleman campaign then responded to Franken's list of applicable expenditures on May 8th by providing their rationale for why some of the listed items do not qualify for compensation. The introduction and conclusion of their opposition is excerpted below with the accompanying PDF as published on the MNCourts website on May 21st: I. Introduction Contestants Cullen Sheehan and Norm Coleman (collectively, "Contestants"), by and through the undersigned counsel, hereby object to Contestee Al Franken's ("Contestee") Bill of Costs and Disbursements, notice of which Contestee served May 6, 2009. Contestee has not provided sufficient detail and/or documentation from which to determine the basis of many of the costs he identifies and the purpose for which they were incurred. Nor has he provided a sufficient explanation as to whether the costs claimed were necessary or reasonable, and it is his burden to do so. Accordingly, this Court should disallow the taxation of costs and disbursements to the Contestants to the extent Contestee has inadequately described his costs or it deems them unnecessary or unreasonable. ... III. CONCLUSION For the foregoing reasons, Contestants respectfully request that this Court disallow Contestee's costs and disbursements to the extent he has improperly classified them as "costs," inadequately described them, or failed to justify them as necessary and reasonable. Dated: May 8, 2009 Source: Contestants Objections to Contestees Bill of Costs and Disbursements via MNCourts.gov [PDF] Unsurprisingly, the Coleman campaign essentially argued that the Franken campaign did not adequately provide needed detail. The brunt of their argument can be summarized with the following quote from the third page, "[t]he burden is on the prevailing party [Franken] to show that its claimed costs are necessary and reasonable." The Coleman campaign also took issue with the expedited status of the many transcripts and witness filing fees that the Franken campaign incurred. From a details point of view, the Coleman filing did not contain any attached exhibits or material evidence supporting any of their claims. The Franken campaign responded on May 13th in 9 pages by addressing each of their claims and Coleman's associated refutations. The Coleman campaign did not refute each item as the Franken campaign noted $5,392 worth of requested disbursements lacking objections. The introduction and conclusion of Franken's response is excerpted below as posted on the MNCourts site on May 21st: Contestee Al Franken ("Contestee") respectfully submits that his costs should be awarded and in the full amount requested pursuant to Minn. R. Civ. P. 54.04. Contestee has submitted a sworn affidavit and numerous invoices documenting costs and disbursements necessarily incurred, as required. Contestants have submitted no affidavit in response. Nor have they suggested that the total amount requested is unreasonable for a complex, seven-week, exhibit-intensive trial. Instead, they raise a series of ill-founded objections, all of which should be rejected. Contestee's costs were reasonably incurred, necessary to the defense of Contestants' lawsuit, and are fully recoverable under Rule 54. ... For all of these reasons, Contestee submits that the full amount itemized in the Bill of Costs and Disbursements should be taxed to Contestants. The costs were reasonably incurred, necessary for the presentation of relevant and admissible evidence at trial, and should be awarded to Contestee as the prevailing party in this action pursuant to Rule 54.04. Dated: May 13, 2009 Source: Contestees Response to Contestants Objections to Bill of Costs and Disbursements via MNCourts.gov [PDF] The ECC issued their ruling today by awarding the Franken campaign roughly two-thirds of their requested disbursements. The publicly available filing from the ECC is fairly terse and without details; the entire document is quoted below: You are hereby notified that a judgment has been entered in the above entitled matter Pursuant to The Findings of Fact, Conclusions of Law, and Order for Judgment, Judge Elizabeth A. Hayden, Judge Kurt J. Marben and Judge Denise D. Reilly dated April 13, 2009. Judgment Information Entered Date: April 14, 2009

Debtor(s): Cullen Sheehan; Norm Coleman.

Creditor(s): At Franken Monetary Award:

Monetary Amount: $94,783.15 A true and correct copy of this notice has been served by mail upon the parties. Please be advised that notices sent to attorneys are sent to the lead attorney only. ***Pursuant to MSA 548.09, Judgment shall be docketed upon the filing of an Affidavit of Identification of Judgment Debtor*** Note: Costs and interest will accrue on any money judgment amounts from the date of entry until the judgment is satisfied in full. Dated: June 10, 2009 Source: Notice of Entry of Judgment Taxation of Costs via MNCourts.gov [PDF] The ECC order appears to retroactively take effect on April 14th and requires the Coleman campaign to pay $94,783.15 in reimbursements to the Franken campaign. I am unsure as to when the "date of entry" officially begins; the interest rate on any delinquent payments is also not explicitly given. The ECC may have also provided additional documentation that has not yet been made available. A decision from the MN Supreme Court is still pending, but according to John Kostouros the Director of Communications for the Judicial Branch, their opinion "will be released during normal business hours (8 a.m. to 5 p.m., Monday-Friday)." Until this unknown date occurs, political posturing will continue as several outside groups have filed additional lawsuits relating to the MN Senate Election. While the outcome rests solely in the hands of the MN Supreme Court, the battle for public opinion never ends. I'll try to detail these auxiliary lawsuits later next week, after completing the necessary research.

Published on June 11st at 11:09 PM CT :: 0 Comments

The Minnesota Supreme Court convened today at 9 AM CT for the oral arguments associated with Norm Coleman's election appeal. The proceedings lasted approximately 69 minutes; upon their conclusion, each candidate's representation addressed the media on the second floor of the Minnesota Judicial Building. The unabridged oral arguments follow as publicly provided by the Minnesota Judicial Branch and Twin Cities Public Television; low bandwidth audio from within the chamber is also available: Video: .WMV, 01:08:47, 78.1 MB [Mirror: TPT.org]

Audio: All files are .WAV, Part 1, Part 2, Part 3 Coleman's lead attorney, Joseph Friedberg began the hearing with what was supposed to be a ten minute introduction. Ten minutes turned into thirty as the five judge panel peppered Coleman's representation with questions and critiques. Despite the barrage of questions, the most telling exchanged occurred in the opening moments of the hearing: Justice Page: We have one case for argument this morning, in the matter of the contest of general election held on November 4, 2008 for the purpose of electing a United States Senator from the State of Minnesota. Mr. Friedberg I see you have reserved 10 minutes for rebuttal. Joseph Friedberg [Coleman]: With the court's permission your honor. Justice Page: You may proceed when you are ready. Mr. Friedberg: Morning and may it please this court; my name is Joe Friedberg, I represent [Norm Coleman]. Let me begin by saying that Minnesota is quite different from many states. We have problems within our institutions and when we do, we deal with them candidly and openly, we don't minimize them or sweep 'em under the rug to be discovered later by a federal court during 1983 litigation. That's why finding of fact 47 of the trial court is so surprising. Announcing that we are proud of rejecting only 0.5% of our total ballots cast in November is misleading at best. The only ballots that get rejected are absentee ballots; and our officials rejected 4% of them; 12,000 citizens who made good faith efforts to vote were disenfranchised for a variety--. Justice Page: Did these 12,000 citizens comply with the absentee ballot voter requirements. Mr. Friedberg: Many of them did substantially your honor, many of them did. Justice Page: Substantially? What does that mean? Source: Minnesota Judicial Branch [Mirror: TPT.org] The remainder of Mr. Friedberg's opening address revolved around Justice Page's seemingly rhetorical, yet legally unanswered question quoted above. The arguments meandered from justice to justice as Friedberg attempted to answer each question. Justice Anderson, Dietzen, Gildea and Meyer each took issue with the Coleman campaign's lack of evidentiary support with regard to their inconsistent application of the strict vs. substantial compliance argument. Justice Meyer prominently entered the fray with this exchange toward the end of Mr. Friedberg's initial rebuttal: Justice Meyer: Where is evidence from the overwhelming majority of the counties and cities? Mr. Friedberg: Every auditor we called, as I recall, made exceptions [to the admittance of absentee ballots]. Now I think we only called 26 or 27--. Justice Meyer: And we have 87 counties, we are reviewing the work of a panel of three trial court judges here and they took evidence. Where is the evidence? Even as you called, as you said, you didn't even call witnesses from a majority of Minnesota's counties. You are asking us to presume, based on the testimony from a sampling of counties that that practice is applied to a majority of the counties. Source: Minnesota Judicial Branch [Mirror: TPT.org] Friedberg responded by hesitantly referencing the assumed equality of populations within Bush vs. Gore to compare the "relaxed standard in Brower County with the unrelaxed standard in Palm Beach." Friedberg would then go on to state that "we have made our case" when "Plymouth kicks out 75 for signature mismatches and 31 counties in the state kick out none." I think Friedberg has a valid point from a mathematical standpoint if true; the Plymouth scenario presents a significant outlier and the aforementioned sampling of "26 or 27" counties represent a statistically sound sampling of all 87 counties. An inconsistent application of absentee ballot compliance in "26 or 27" counties would indicate to me, although devoid of legal rigor, that a problem existed, regardless of the remaining 50 or so counties. Whether the Coleman campaign adequately provided evidence to support this claim is vague at best. Mr. Friedberg's time expired and Marc Elias, Franken's lead attorney, stepped up to the podium whereupon stating his name received his first question from Justice Page: Justice Page: Council, before you get to that finding of fact, let me ask you a question. Hopefully council for the other side will be able to respond to this on the rebuttal. To the extent that the United States Senate will make the ultimate decision here, and the extent that they don't have to follow what we do. How do we issue an opinion, without it being an advisory opinion? In essence, do we have authority to do anything here? Marc Elias [Franken]: Your Honor, this question was raised with the district court as to whether the court had jurisdiction. The court found, and we believe appropriately so, that the court had jurisdiction to determine who received the most lawful votes, even though the Senate has within its jurisdiction to decide who is seated. Source: Minnesota Judicial Branch [Mirror: TPT.org] Elias would then go onto quote a South Dakota case involving Tom Daschle from his days as a Congressman. The referenced case was eventually linked to a Supreme Court decision stating that so long as the state process does not impede the US Senate, the state court is not "deprived of jurisdiction." The MNSC clearly has the power to declare a winner under Minnesota Statute, but the US Senate is under no obligation to act in accordance with any decision. The issuance of an election certificate for the sole purpose of full representation is irrelevant to the Supreme Court's present responsibility; an election certificate will apparently only be issued upon the thorough completion of the appeals process. The sole duty of the MN Supreme Court is to determine the candidate who received the largest number of legally cast votes, not to ensure federal representation or for any other purpose. Elias would then go on to perform a small bit of math in the hopes of illustrating the futility of the Appellants' case: Mr. Elias: From the March 31st order of the trial court, in which [the Coleman campaign] held that of all the rejected absentee ballots, the parties proved registration for approximately 650; 650 of all of the ballots presented to the court. That's voter registration, that's not all of the other requirements that appellants now have complaints about. But this is the most fundamental requirement, that the voter be registered. Of those 650, 351 were opened and counted. So the universe of ballots, properly plead and about which this trial took place, stands at 299. Now, obviously the margin separating the two candidates is 312. As a result, even if everyone of the three-hundred or so ballots, for which voter registration was proven, doesn't mean the witness was registered, doesn't mean that the certificate was completed, it doesn't mean that they only cast one ballot, but that they were at least registered. Even if all three-hundred of those were for the appellant, and even if all three-hundred met all other requirements, it would still be impossible for the appellants to make up the difference. Source: Minnesota Judicial Branch [Mirror: TPT.org] The remainder of Elias' time was spent discussing the finer points of due process and equal protection. Elias contended that the discrepancies between each county served to "grease the joints" of election reporting. He later defended any breach of due process or equal protection on the grounds that the inconsistencies were not intentional or systematic and could therefore not be classified as in bad faith or fraudulent as required within Bush vs. Gore. Elias concluded his presentation by stating that election officials used "the different tools, available to them in the different jurisdictions" to "administer a fair election" within the confines of the law. Mr. Friedberg then returned to the podium for the final fifteen minute stint and made three main assertions before the court adjourned. He first presented the varying processes by which each county voided an invalid ballot, thus potentially creating cases where the voter was registered, but their vote was not counted due to a failure to comply with another statutory requirement. Friedberg then reasoned that these registered voters should have their vote counted based upon the application of substantial compliance. Justice Page then questioned the lack of evidence presented by the Coleman campaign specifically relating to these uniquely registered and rejected voters. Friedberg countered by stating that the ECC would not accept the evidence despite his effort, to the point of "test[ing] the trial court's patience." Justice Anderson then explicitly asked Friedberg if their were any instances of fraud. Friedberg responded by simply stating "absolutely not" and added that there was no fraud of any kind; election, voter or otherwise. During Elias' statement, Justice Deitzen began to muddle through the messy statute associated with the challenging of ballots; Deitzen would later finished his line of questioning with Friedberg at the helm. Although the statute is not definitive, the application, as implement by the Attorney General during the recount, precluded either campaign from challenging the inclusion of any absentee ballot. This meant that once an absentee ballot was included by an election official for any reason, it would be opened and counted. This practice differed from the in-person portion of the recount in which the campaigns were allowed to challenge the election officials' ruling. Upon conclusion of the hearing, Norm Coleman and Joseph Friedberg jointly addressed the media: Video: .WMV, 09:37, 158MB The general gist of Coleman's address was that there are voters who have not had their vote counted, and are therefore disenfranchised; until they are enfranchised the campaign will continue to represent the interests of these 4,400 voters. This statement seems to align with Friedberg's opening remarks. Mr. Friedberg cited Minnesota's Judicial history of addressing all problems before they reach the federal level. Drawing from this prior statement it seems logical to conclude that if the MNSC does not address all of the problems, the Coleman campaign will seek federal relief. Marc Elias then addressed the media after the Coleman procession exited the foyer: Video: .WMV, 04:19, 71.1MB Marc Elias' brief address was followed up by a few soft questions from the media. Elias basically reiterated that he was confident of a Franken victory, but that he had no specific timeline in mind for a Supreme Court decision. If I had to guess at a timeline I would say by July 4th, but I really have no idea; the whole ordeal could drag out even further depending on what the MNSC concludes. Coleman's best case scenario is for the ECC to resume the trial with different rules and Franken's best case scenario is an outright win. Its also possible for this to end up in federal court as discussed above. I doubt very much will happen within the next two weeks. I also stopped by the Ramsey County Court House to obtain some other court documents that I'll hopefully be able to post sooner rather than later.

Published on June 1st at 4:13 PM CT :: 2 Comments

The Coleman campaign filled their brief with the Minnesota Supreme Court on April 30th, the last possible day for submission. An overview of the 62 page document is excerpted below: ISSUES PRESENTED ON APPEAL 1) Whether the trial court erred in excluding evidence regarding (a) the disparate application by election officials of the statutory standard governing absentee ballots and (b) the presence of illegal votes in the certified vote totals? Trial Court's Ruling: Such evidence was irrelevant to whether the ballots before it were legally cast. Apposite Authorities: Minn. Stat. § 209.12; U.S. Const. amend. XIV. 2) Whether the trial court violated the constitutional protections of equal protection and due process when it declared Respondent received the highest number of "legally cast votes" where the record demonstrated the number of "illegally cast" ballots, under the court's own definition, that were counted on election day and during the recount greatly exceeded the margin between the candidates? Trial Court's Ruling: Already-counted absentee ballots, even if illegal under the court's own definition, were properly included in the tally because Minnesota law does not provide any remedy for retracting such ballots from vote totals and the Fourteenth Amendment does not require that similar ballots in the same election be treated the same. Apposite Authorities: Minn. Stat. § 209.12; Hanson v. Emanuel, 297 N.W. 749 (Minn. 1941); Berg v. Veit, 162 N.W. 522 (Minn. 1917); Roe v. State of Alabama, 43 F.3d 574, 581 (lith Cir. 1995); Griffin v. Burns, 570 F.2d 1065, 1078 (lst Cir. 1978); U.S. Const. amend. XIV. 3) Whether the trial court violated the constitutional protections of equal protection and due process when it imposed a strict compliance standard for rejected absentee ballots rather than a substantial compliance standard like that actually applied by election officials (and in accord with this Court's longstanding policy favoring enfranchisement)? Trial Court's Ruling: Rejected absentee ballots that do not strictly comply with the statutory requirements may not be included as "legally cast" ballots regardless of whether election officials also followed a strict compliance standard. Apposite Authorities: Fitzgerald v. Morlock, 120 N.W.2d 339, 345-47 (Minn. 1963); Andersen v. Rolvaag, 119 N.W.2d 1,10 (Minn. 1962); In re Contest of School District Election, 431 N.W.2d 911,915 (Minn. Ct. App. 1988); Minn. Stat. § 203B.12; Erlandson v. Kiffmeyer, 659 N.W.2d 724, 729 (Minn. 2003); Bush v. Gore, 531 U.S. 98 (2000); U.S. Const. amend XIV. 4) Whether the trial court erred in declining to order inspections of precincts in which double-counting may have occurred during the recount? Trial Court's Ruling: Inspections were not required and unnecessary. Apposite Authorities: Minn. Stat. § 209.06. 5) Whether the trial court erred in ruling missing ballots from a Minneapolis precinct were properly included in the final recount tally? Trial Court's Ruling: The court gave deference to the canvassing board's determination that election night totals from that precinct be included in the tally. Apposite Authorities: Newton v. Newell, 6 N.W. 346 (Minn. 1880). Dated: April 30, 2009 Source: Appellant's Brief [PDF] Coleman's initial brief "contains 13,751 words" across five sections and focuses on the five points outlined above; the document was also written in "13-point Times New Roman format," as detailed within the Certificate of Compliance at the end of the brief. I'll now provide a brief analysis of each of the five main points: 1. The basis of this argument is that if different ballots were subjective to different standards, all ballots were treated differently. Coleman argues that had the court allowed additional evidence, a more accurate definition of a legally cast vote would have been ascertained. The Coleman campaign did not however provide any specific evidence, in this brief, to illustrate that the correlation between inconsistent standards caused any discrepancy in the final vote count. The ECC excluded this evidence because the Coleman campaign did not show that specific ballots were miscounted. 2. The "Coleman [campaign] ultimately compiled that evidence in written offers of...more than 425 illegally cast absentee ballots counted on election day. See, e.g., A.570-591; A.709-919." This number of 425 is larger than the current margin of 312, but election history and apportionment would indicate that a much larger number of illegally cast and counted votes would be required to alter the outcome; especially given the apparent randomness of the illegally counted ballots proposed by Coleman. 3. Each and every ballot that was counted by an election official, using any standard, could have been presented to the ECC for review by the Coleman campaign. The very purpose of the ECC is to act as the final arbiter for any contention raised by any participating party; their jurisdiction implies the existence of a uniform standard. If a ballot is presented to the ECC it receives uniform treatment under the strict compliance standard; if a given ballot is not alleged to contain errors, it is assumed to have been properly counted by the local election official under the strict compliance standard as dictated under MN Law. If a uniform standard was not applied by the local election officials, it was the responsibility of the Coleman campaign to flag the error for correction by the ECC; a mechanism which satisfies equal protection. 4. The Coleman campaign never presented any compelling evidence to suggest that double counting occurred. They presented a fairly limited number of precincts exhibiting overcounts (more votes than voters) and attempted to imply that double counting only occurred to the detriment of candidate Coleman; they did not however provide any concrete reasoning to support this claim either through evidence or witness testimony. Their double counting argument might have been more effective had they addressed all [PDF] overcounted precincts. Lets also not forget that the MNSC previously issued a non-binding order, before the ECC, addressing the flimsiness of the double counting evidence presented by the Coleman campaign. 5. The MN State Canvassing Board determined that the Election Night totals from Minneapolis W3-P1 should be used due to missing ballots and the ECC later adopted the Canvassing Board's stance. Without very compelling new evidence, which so far hasn't been presented, the MNSC is not going to overturn the opinion of these two election governing bodies. The Franken campaign's response on May 11th mirrored the organization of the Coleman's effort and also came on the last day of the designated timeline. The Franken response contains a direct rebuttal of the five previous points, as excerpted below: RESTATEMENT OF ISSUES PRESENTED 1) Whether the trial court acted within its discretion when it excluded cumulative and irrelevant evidence that would not have affected the outcome of the trial. Trial Court's Ruling: On multiple grounds, the evidence was properly excluded. Authorities: State v. AmoJ, 6.58 N.W.2d 201,203 (Minn. 2003); Minn. R. Civ. P. 61. 2) Whether the trial court acted within its discretion when it prohibited Appellants from presenting evidence that had never been disclosed in discovery, where the effect was to preclude a claim that was procedurally barred, factually unsupported, and without legal merit. Trial Court's Ruling: Appellants not only failed to meet their burden of proving that certain accepted absentee ballots affected the outcome of the election; they also waived these claims by failing to comply with discovery obligations. Authorities: Minn. Twim P'sbip v. Hatch, .592 N.W.2d 847, 850 (Minn. 1999); Hahn v. Graham, 225 N.W.2d 385,386 (Minn. 1975). 3) Whether the trial court was correct to judge the acceptability of absentee ballots under Minnesota statutes and case law, rather than under an invented standard that finds no support in the statutes, the Constitution, or the facts, where the party advocating the alternative, invented standard inadequately raised the claim and presented insufficient proof in support. Ruling: Appellants' claims fail on multiple grounds, and, in any event, Minnesota law governs the treatment of absentee ballots. Authorities: Cranford v. Marion County Election Bd., 128 S. Ct. 1610 (2008); Bell v. Gannaway, 227 N.W.2d 797 (Minn. 1975); Minn. Stat. §§ 203B.02 et seq. 4) Whether the trial court acted within its discretion when it determined that Appellants had failed to show a need for certain pretrial inspections. Trial Court's Ruling: On multiple grounds, Appellants failed to meet their burden. Authorities: Minn. Stat. § 209.06. 5) Whether the trial court properly refused to overturn the certification by the State Canvassing Board, where the latter had determined, after a hearing and on advice of the Attorney General, that the Election Day returns were the best evidence of the votes in a certain Minneapolis precinct. Ruling: The Board acted correctly and Appellants presented insufficient evidence to overturn its certification. Authorities: Moon v. Harris, 142 N.W. 12 (Minn. 1913). Dated: May 11, 2009 Source: Respondent's Brief [PDF] The Franken campaign basically took Coleman's argument and added a "no" or a "not" to the beginning and provided the typical supporting legal references. This is by no means unexpected, but it highlights the futility of Coleman's appeal. The Coleman campaign's best case scenario has shifted away from that of winning to that of not-losing; an invalidation seems to be their best case scenario. The Franken campaign is simply attempting to eliminate that possibility. On an interesting side note, the Franken response "contain[ed] 13,998 words" about 200 more than Coleman's first brief, but the Franken campaign chose to use the "Garamond font," instead of Times New Roman as the Coleman campaign used. The Coleman campaign responded with their reply brief on May 15th, again the last day of the deadline: CONCLUSION In order to satisfy Minn. Stat. § 209.12 and the constitutional guarantees of equal protection and due process, the Court should vacate the order for judgment and reverse and remand with instructions to count the remaining absentee ballots cast by eligible voters who substantially complied with the directives of Minn. Stat. § 203B.12. Dated: May 15, 2009 Source: Appellant's Reply Brief [PDF] Parsing through all the legal pretense reveals the core of Coleman's strategy; to count sum "4,400" absentee ballots that have yet to be counted. Whether Coleman can legally justify the counting is a different matter; he seems to be using the one wrong needs another wrong to make a right approach. Illegal ballots were probably counted, and the only way to counteract the problem is by counting more illegally counted ballots. My pragmatic solution is take the 4,400 absentee ballots and separate them into piles of lawlessness; then you count the most legal pile, then the next most legal and so on and so forth until it matters, or perhaps it won't. The counting process would have to be done blindly so that only the MNSC would know the result of each pile. If the entire batch of 4,400 is iterated through, degree by degree, and Franken still leads, the legality is moot; grant Coleman's central request and then declare Franken the winner. If the counting of these 4,400 alters the outcome, then the lawyers can fight about whatever their side needs to fight about, but at least we know the legal battle has a purpose. Coleman is currently down by 312 votes, and I highly doubt he could overcome this deficit within the 4,400 currently rejected and likely illegally cast ballots his campaign seeks to enfranchise. The Coleman campaign's requested remedy may not even matter at this point, but its their best shot and both campaigns know it.

Published on May 27th at 10:59 PM CT :: 0 Comments

Last Friday the MN Supreme Court released their schedule for the MN Senate appeals process; the entire order is excerpted below: ORDER On Monday, April 20, 2009, appellants Cullen Sheehan and Norm Coleman filed a notice of appeal from the judgment entered by the three-judge panellin Ramsey County District Court in the above-referenced election contest On Tuesday, April 21, 2009, respondent AI Franken filed and served a motion for expedited briefing and proposed a particular briefing schedule; appellants filed a written response and proposed briefing schedule on Wednesday, April 22. The time for appeal by other parties expired on Thursday, April 23, 2009, and no other appeals have been filed. In accordance with Minn. Stat §§ 209.09, subd. 2, 209.10, subd. 4, and 209.12 (2008), the appeal shall proceed on an expedited basis. Based upon all the files, records and proceedings herein, IT IS HEREBY ORDERED THAT: 1. Ramsey County District Court shall certify and file the record on appeal with the Clerk of Appellate Courts as expeditiously as possible, but in no event later than 15 days after the service of the notice of appeal on April 20, 2009. 2. Appellants shall serve and file their brief not later than Thursday, April 30, 2009; respondent shall serve and file his brief not later than Monday, May 11, 2009. Appellants may serve and file a reply brief not later than Friday, May 15, 2009. Briefs and appendices shall comply with the requirements of Minn. R. Civ. App, P. 128.02-.04, 130, 131.03, and 132.01. Briefs must be received by the Clerk of Appellate Courts by the deadlines noted to be timely filed. 3. Service by mail is permissible if a complete copy of the material is also transmitted to opposing counsel bye-mail or facsimile by the deadlines imposed herein. Each party shall notify the Clerk of Appellate Courts and opposing counsel of an e-mail address or facsimile number to which documents may be transmitted. 4. The court will hear argument on this matter commencing at 9:00 a.m., Monday, June 1,2009, in Courtroom 300, Minnesota Judicial Center, 25 Rev. Dr. Martin Luther King, Jr., Boulevard, Saint Paul. Argument will proceed in accordance with the applicable provisions of Minn. R. Civ. App. P. 134. 5. Respondent's motion for expedited briefing is otherwise denied. Dated: April 24, 2009 Source: Order of Scheduling via MNCourts.gov The MNSC essentially adopted the Coleman campaign's requested timeline for briefing submissions while delaying the oral arguments for roughly two weeks beyond the final submission deadline. The first document is due this Thursday from the Coleman campaign with the Franken response due two weeks hence on the 11th of May. At that point the Coleman campaign will have 4 days to submit a final reply brief before the proceedings adjourn until June 1st; the day allocated for oral arguments.

Published on April 28th at 3:27 AM CT :: 0 Comments

Yesterday the Franken Campaign presented their pre-litigation timeline, and today the Coleman campaign responded: Appellants agree this is a time-sensitive case that should be resolved as expeditiously as possible, Appellants respectfully submit, however, that the parties, and the Court, must be given enough time to fully develop and consider the issues on appeal. Accordingly, Appellants respectfully request a slight modification to the briefing schedule proposed by Respondent as follows: 1. Opening brief of Appellants - April 30, 2009; 2. Opposition brief of Respondent - May 11, 2009; and 3. Reply brief - May 15, 2009. The Court may then schedule oral argument at a time convenient to it. Dated: April 22, 2009 Source: Appellants' Response to Respondent's Motion for Expedited Schedule via MNCourts.gov [PDF] The schedule above concludes on May 15th, a Friday, which seems to suggest that oral arguments would begin the following Monday, May 18th. The Coleman timeline is about two weeks longer than Franken's timeline; this discrepancy manifests itself at each stage of the pre-litigation process. It appears as though the Coleman campaign wants 3 more days to file their initial brief, above and beyond the schedule already outlined by the Franken campaign. It's also interesting to note that the Coleman schedule allows about ten days for the Franken response, while the Franken campaign only indicated that they would need five days. The Coleman campaign also increased their reply time by two days beyond Franken's proposition. It would make sense for the court to grant Coleman the additional time he is requesting for his own case, but to follow the schedule presented by Franken for deadlines that apply to Franken. It doesn't make sense to allocate ten days when they (Franken) said they could do it in five. I think the court will ultimately compromise between the two campaign's requests; thus resulting in an oral argument start date of May 11th. The Franken campaign also filed a motion with the MN Supreme Court today, although theirs was comparatively meaningless: David L Lillehaug does hereby move the Court, pursuant to Minn. R Civ. App, P 127 and 143.05, subd. 1, for admission of Marc E. Elias and Kevin J. Hamilton as attorneys pro hac vice to appear before this honorable Court on behalf of Respondent Al Franken in the above-captioned matter, This motion is based upon all files, records and proceedings herein, as well as the attached Affidavits of Marc E. Elias and Kevin J. Hamilton. This motion is submitted on the papers, and oral argument is expressly waived. Dated: April 22, 2009 Source: Respondents's Motion to Admit Attorney's Pro Hac Vice via MNCourts.gov [PDF] Marc Elias and Kevin Hamilton both actively participated in the Election Contest Court; this is simply a procedural motion that will grant these two attorneys the privilege of practicing law before the Minnesota Supreme Court. Marc Elias is registered with the DC Bar, while Kevin Hamilton is registered with the Washington State Bar. The MN Supreme Court will probably present the official appeal timeline/schedule within the next few days at which point the litigation process begins, again, although slightly different in nature and much shorter. Update [3:47 AM CT 4/24/2009]: The Supreme Court has granted Franken's request for the admission of two lawyers pro hac vice. This order really isn't a suprise, but I guess it brings the resolution just a little closer: ORDER Based upon all the files, records and proceedings herein, IT IS HEREBY ORDERED that the motion of David L Lillehaug to admit Marc E. Elias and Kevin J. Hamilton, Perkins Coie, LLP, pro hac vice in the above entitled matter be, and the same is, granted. Dated: April 23, 2009 Source: Order Granting Motion to Admit Attorneys Pro Hac Vice via MNCourts.gov [PDF] The bulk of the proceedings will occur out of court, through the exchange of filings, and will culminate with oral arguments presented by each campaign in public court. In previous MN Supreme Court cases relating to this election, the oral arguments have been scheduled for a single hour; the court may however allocate more time as they deem necessary. This is not a typical trial format, once the oral arguments conclude, the court will deliberate until a decision is reached. The schedule will effectively dictate the duration of the trial, unfortunately the court has not released their final timeline; but I'm sure its in the works.

Published on April 23rd at 2:46 AM CT :: 0 Comments

The Coleman campaign filed their motion for appeal yesterday, and today the Franken campaign responded with the following requests: Cullen Sheehan and Norm Coleman ("Appellants") have appealed the unanimous decision of the three-judge election contest court ("the District Court"), which, after a seven week trial, affirmed the unanimous Minnesota State Canvassing Board certification that Al Franken ("Respondent") received the highest number of votes in the 2008 general election for the office of United States Senator. Because of the overriding public interest in the expeditious handling and resolution of this historic matter, Respondent respectfully moves for an order that: 1. The record of the District Court proceedings be provided to the Court by the close of business tomorrow, Wednesday, April 22, 2008; 2. Briefing be expedited pursuant to the schedule below, so that the case will be ready for argument twelve calendar days following provision of the record, or Monday, May 4, 2008; and 3. A date for oral argument be set such that the case will be argued promptly after briefing is complete. This motion is made pursuant to Minn. Stat § 209.09, subds. 2 & 4, Minn. R. Civ App. P. 102 and 126, and the Court's inherent authority. GROUNDS FOR MOTION Under the United States Constitution, Minnesota is entitled to be represented by two United States Senators, Minnesota has been without its second Senator for more than 100 days, In a trial that lasted seven weeks, Appellants were given every opportunity to make their case to the District Court In its unanimous decision, the District Court declared that Respondent is entitled to the certificate of election. Now, because of the important public policy concern of ensuring that the interests of the citizens of Minnesota are properly represented in Congress, this appeal should be expedited. ... 1. Expedite the Preparation and Filing of the Record. ... 2. Expedite the Briefing Schedule. ... Accordingly, Respondent suggests the following briefing timeline: A. Opening brief of Appellants - Monday, April 27, 2009, five calendar days after delivery of the record; B, Opposition brief of Respondent - Saturday, May 2, 2009, five calendar days after service of the opening brief; and C. Reply brief - Monday, May 4, 2009, two calendar days after service of the opposition brief. 3. Set an Expedited Date for Oral Argument. Respondent respectfully suggests that the Court schedule oral argument now for a date very shortly after the reply brief is submitted. More than five full months have elapsed since the November 4, 2008, general election. More than three months have elapsed since the State Canvassing Board declared the election result and the United States Senate convened to address the nation's urgent business. Yet, unlike every other state in the union, Minnesota stands alone with only a single United States Senator to represent its citizens and respond to their concerns. While Appellants had the right to challenge the State Canvassing Board's decision before three judges and now have the right to appeal the District Court's unanimous decision rejecting their claims, Respondent submits that the overriding public interest in resolving this dispute promptly requires that this appeal be expedited. Dated: April 21, 2009 Source: Respondent's Motion to Expedited Schedule via MNCourts.gov [PDF] The Franken campaign is seeking to accelerate the litigation proceedings to the greatest extent possible; they cite several Minnesota Statues, which I detailed yesterday, that give precedent to this election contest appeal. It should also be noted that the MN Supreme Court arranges their own schedule in accordance with Rule 102 of the Minnesota Rules of Civil Appellate Procedure. I am however sure, that the MN Supreme Court will address this appeal in the most efficient manner possible. The Franken campaign is pushing for a May 4th start date, and their request seems reasonable given the circumstances. If I had to bet, I would say that May 4th would be the absolute soonest the oral arguments could start, with May 11th, the following Monday, presenting as another realistic start date.

Published on April 22nd at 1:54 AM CT :: 0 Comments

The representation of Norm Coleman has filed paper work with the Minnesota Supreme Court appealing the decision of the Election Contest Court. The filings came in the form of three documents, each of which I will highlight below. The first document is the Notice of Appeal: TO: Clerk of the Appellate Courts

Minnesota Judicial Center

25 Rev. Dr. Martin Luther King Jr Blvd.

St. Paul, MN 55155 PLEASE TAKE NOTICE that the above-named Contestants appeal to the Supreme Court of the State of Minnesota, pursuant to Minn. Stat. § 209.10 subd. 4, from the final judgment of the contest court entered on the date shown above, declaring Contestee the recipient of the highest number of legally cast votes in the General Election held November 4, 2008, for the purpose of electing a United States Senator for the State of Minnesota, as well as from all orders relating thereto as subsumed therein. Dated: April 20, 2009 ... Dear Clerk of Appellate Courts: Enclosed for filing in the above-referenced matter are the following documents: 1. Original and 2 copies of the Notice of Appeal to Supreme Court; 2. Certified copy of the Contest Court's Judgment; 3 Original and 2 copies of the Appellants' Statement of the Case; 4. Affidavit of Service upon Ramsey County; and 5. Affidavit of Service upon opposing counsel. Also enclosed is our check in the amount of $500 to cover the filing fee. Source: Notice of Appeal to Supreme Court via MNCourts.gov [PDF] The second document contains 10 items that more or less summarize the appeal. Some of these items are simply procedural while others contain useful information. Section 5 is by far the most relevant as it directly lists the claims that the Coleman campaign is actually appealing; I've excerpted all of section 5 and the headings of the other 9 sections below: 1. COURT OF CASE ORIGINATION AND NAME OF PRESIDING JUDGE 2. JURISDICTIONAL STATEMENT 3. TYPE OF LITIGATION AND STATUTE AT ISSUE 4. DESCRIPTION OF CLAIMS, DEFENSES, ISSUES LITIGATED AND RESULT BELOW 5. ISSUES PRESENTED ON APPEAL I. Whether the trial court erred in excluding evidence regarding (a) the disparate application by election officials of the statutory standard governing absentee ballots and (b) the presence of illegal votes in the certified totals from election night? II. Whether the trial court violated the constitutional protections of equal protection and due process when it declared that Respondent received the highest number of "legally cast votes" where the record demonstrated that, by the trial court's rulings, the number of "illegally cast" ballots counted on election day and during the recount greatly exceeded the margin between the candidates and it cannot be determined for which candidate those illegal votes were counted? III. Whether the trial court violated the constitutional protections of equal protection and due process when it imposed a strict compliance standard for the rejected absentee ballots rather than applying a substantial compliance standard to reflect those actually applied by election officials (as well as this Court's longstanding policy favoring enfranchisement)? IV. Whether the trial court erred in declining to order inspections of precincts in which double-counting was alleged to have occurred? V. Whether the trial court erred in ruling that missing ballots from Minneapolis Precinct 3-1 were properly included in the tally officially cast votes? 6. RELATED APPEALS 7. CONTENTS OF RECORD 8. ORAL ARGUMENT 9. TYPE OF BRIEF 10. NAMES, ADDRESSES, ZIP CODES AND TELEPHONE NUMBERS OF ATTORNEYS FOR APPELLANT AND RESPONDENT Dated: April 20, 2009 Source: Statement of the Case of Appellants via MNCourts.gov [PDF] The most interesting point of appeal comes from section 5.2 and seems to highlight Norm Coleman's attempt to invalidate the election, rather than prevail as the top vote-getter. This marks the first time, that I can recall, where the Coleman campaign has sought relief that would not result in him being declared the winner. The other four items in this section do however encompass the potential addition or subtraction of votes, that could result in Coleman taking the lead, albeit it unlikely. The final document is simply the judgment entered by the ECC last Monday that asserted Franken's victory by 312 votes. I assume, that when filing an appeal, you must file the judgment which you are actually appealing. Any future court filings will be filed on the MN Supreme Court litigation page; a change from the previous ECC litigation website. I have no idea when the actual litigation process will begin, although, according to MN § 209.10.4, "the appeal from an election contest relating to the office of state senator or representative takes precedence over all other matters before the Supreme Court." MN § 209.10.4 further pertains "to a contest regarding a statewide office" as noted within MN § 209.09; this classification includes the US Senate Election. Although the appeal will have precedence, I would still expect the Franken campaign to push for an expedited schedule. Update [7:38 PM CT]: I found other relevant law (§ 209.09) that applied to § 209.10.4 and thus establishes the election contest appeal as paramount to MN Supreme Court's duties. I've updated the article to clarify and reflect these changes.

Published on April 20th at 6:10 PM CT :: 1 Comment

A relatively quiet week ensued, after the Election Contest Court's Monday ruling, but a few pertinent if seemingly unrelated events did transpire. I'll cover two events, as reported by the two major Minnesota papers, and present the time frame for Norm Coleman's potential appeal to the MN Supreme Court. Our first event features a meeting between Norm Coleman and the Minneapolis Star Tribune's Editorial Board. The meeting took place on April 16th, and a small portion of the video has been posted online at the Star Tribune website. The excerpt shows Norm Coleman visibly upset over the Star Tribune's conduct, with regard to the allegations of money laundering, in the days directly preceding the election. I covered the allegations back in November, if you're curious about the back story. It'll be interesting to see if the Star Tribune alters their reporting procedures in the coming weeks to make amends; even though they already tend to lean right. Our next story involves another act of vandalism levied against Norm Coleman's house; as reported by the Pioneer Press: St. Paul police are investigating after eggs were thrown at former U.S. Sen. Norm Coleman's house in the Crocus Hill neighborhood. It happened about 9:20 p.m. Tuesday, according to a police report that recorded the incident as misdemeanor criminal damage to property. After eggs had hit the front door of Coleman's home in the 600 block of Osceola Avenue, a resident of the home saw a man who appeared to be in his 20s outside, said Peter Panos, police spokesman. The report didn't say who the resident was or whether Coleman was home, Panos said today. The resident then saw the man throw a few more eggs, Panos said. The number of eggs thrown wasn't in the report, he said. The egg thrower wasn't caught, Panos said. Coleman said Wednesday that a young man had bicycled past his home this week and thrown eggs at him. ... Republican Coleman has said he will appeal this week's court ruling that Democrat Al Franken won last year's U.S. Senate race. Source: St. Paul Pioneer Press I don't know if this is particularly important, but it happened, so I'm reporting it. The last line of the excerpt does however provide a perfect segue. Norm Coleman, lost his election contest, and now he has the opportunity to appeal the ECC's ruling; which he has indicated he will do. Let's began by looking at the relevant law proscribing the time frame in which an appeal must occur: Subd. 4.Appeal. The judge's decision may be appealed to the Supreme Court no later than ten days after its entry in the case of a general election contest or five days after its entry in the case of a primary contest. The record on appeal must be made, certified, and filed in the Supreme Court within 15 days after service of notice of appeal. The appellant shall file in the district court a bond of $500 for the payment of respondent's costs if appellant fails on appeal. The appeal from an election contest relating to the office of state senator or representative takes precedence over all other matters before the Supreme Court. A copy of the decision must be forwarded to the chief clerk of the house of representatives or the secretary of the senate, as appropriate. Source: § 209.10, 2008 Minnesota Statutes We know that Coleman has "ten days" to appeal, but the above article makes no reference to calendar days, business days or whatever; so the question then becomes, when does the tenth day occur? Another Minnesota Statute seems to outline the proper interpretation: 6.01 Computation In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the court administrator inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule and in Rule 77(c), "legal holiday" includes any holiday defined or designated by statute. Source: Minnesota Rules of Civil Procedure The ten day appeal period began on Tuesday, April 14th because the day of the ruling, Monday, "shall not be included." It's not clear whether the judgment was actually legally entered on Monday, as MN Rule 58.01 dictates that order "shall be entered forthwith by the court administrator", which may or may not be the date of filing. There may exist other legal contingencies that could extend the start date for the appeal window. If we assume that the judgment took effect on Monday April 13th, that makes the tenth day Thursday, April 23th as weekends and legal holidays are included because the prescribed time is more than seven days. Therefore, the Notice of Appeal must be filled on or before Thursday, April, 23; unless weather or other extenuating circumstances arise which facilitate the closure of the court offices. In this event, the Notice of Appeal must be filed on the next day the court office is open and this "next day" cannot be a weekend or a legal holiday. I doubt, the Coleman campaign is in a hurry to file their appeal, my guess is at least Wednesday. In the mean time, Franken will still not be seated in the US Senate without an Election Certificate which, according to MN § 204C.40, cannot be issued until after "a court of proper jurisdiction has finally determined the contest." In the case of an appeal, this would be the MN Supreme Court. If by next Thursday (or Friday), an appeal is not filed by the Coleman campaign, a Minnesota Election Certificate could be legally issued to Al Franken. Update [9:31 PM CT]: I clarified some of the appeal deadlines and accounted for other contingencies that could alter the window for appeal.

Published on April 19th at 4:31 PM CT :: 0 Comments

The 2008 Minnesota Senate Election officially has a winner, at least according to the Election Contest Tribunal. The three judge ECC issued a 68 page order late Monday declaring Franken the winner. The body of the order is excerpted below: ORDER FOR JUDGMENT Based on the above findings of fact and conclusions of law, and pursuant to Minn. Stat. § 209.12, the Court DECIDES, DECLARES, AND ADJUDGES that Contestee Al Franken is the party to the contest who received the highest number of votes legally cast in the 2008 United States Senate general election and is therefore entitled to receive the certificate of election. Accordingly, IT IS ORDERED that: 1. Contestants' Notice of Contest is dismissed with prejudice; 2. Contestee's Counterclaims are dismissed without prejudice as moot; 3. Pursuant to Minn. Stat. § 209.07, subd. 3, costs of the contest must be paid by Contestants, and Contestee and the Court shall prove up the applicable costs by affidavit after all proceedings in this matter are concluded; and 4. For the reasons stated in the Court's Order of March 2, 2009, imposing a sanction on Contestants, Contestee is awarded his reasonable costs and attorneys' fees in connection with Contestants' failure to disclose, such costs and fees to be proved up by affidavit. 5. Any request for relief in these proceedings not specifically granted herein is denied. There being no just reason for delay, LET JUDGMENT BE ENTERED ACCORDINGLY Dated: April 13 2009 Source: Findings of Fact, Conclusions of Law, and Order for Judgment via MNCourts.gov [PDF] Before the above order, the ECC presented 157 individual findings of fact over 24 pages. Finding #120 addresses the missing ballots in Minneapolis W3-P1 and findings #137 and #138 detail the voters whose ballots were opened and counted on April 7th: 120. Given the evidence presented, the Court finds that 132 ballots from Minneapolis Precinct 3-1 were cast and properly counted on Election Day and were lost at some point after they were counted on Election Day but before the administrative recount. ... 137. The evidence was sufficient to prove that the absentee ballots of the persons identified in Attachment A were legally cast and wrongfully rejected. 138. The following additions shall be made to the vote totals certified by the Board on January 5, 2009: 111 additional votes for Coleman and 198 additional votes for Franken. Source: Findings of Fact, Conclusions of Law, and Order for Judgment via MNCourts.gov [PDF] Attachment A contains the names and counties of 351 voters, along with a reference to the exhibit or court document in which they were originally presented. A greater majority of the exhibit reference appear to begin with an "F," meaning that the Franken campaign originally presented that voter's absentee ballot. This is not however a scientific analysis, simply a brief observation. I'll digitize the document later and provide an exact count at a later date. Follwing the findings of fact, the court then presented two memorandums addressing specific, yet unresolved issues. The first memorandum is entitled "RULE 9/DOUBLE COUNTING MEMORANDUM" and can be characterized from the following excerpts on page 30 and 31 of the order, respectively: Any argument that Contestants did not realize that Rule 9 might lead to possible "double counting" of ballots has been waived by their conduct and delay in raising this issue. This court emphasized in earlier orders that this is an expedited proceeding. Contestants' unreasonably delayed raising their claim and are now barred from asserting it. ... This Court received evidence that it is not uncommon for discrepancies to exist between the number of ballots cast in a precinct and the number of voters shown on Election Day rosters. These Election Day discrepancies can be caused by voters failing to sign rosters before voting and election judges failing to mark the acceptance of absentee ballots on the rosters. The Court cannot conclude that double counting occurred simply because the number of votes counted during the recount is greater than the number of voters on the rosters. Source: Findings of Fact, Conclusions of Law, and Order for Judgment via MNCourts.gov [PDF] Basically the court acknowledged that discrepancies between the number of physical voters and the number of physical votes existed, but the court was unmoved by the Contestant's [Coleman] attempts to prove that these discrepancies were caused by double counting. The next memorandum is entitled "EQUAL PROTECTION MEMORANDUM," and as you might guess, deals with Coleman's equal protection claim. The court first summarized Coleman's argument on page 33 and then states, on page 37, that the proper jurisdiction for this argument lies within the US Senate: I. Introduction Contestants argue that similarly-situated absentee ballots were treated differently throughout Minnesota's counties and cities, and that this inconsistent treatment implicates the Equal Protection Clauses of the United States and Minnesota Constitutions. The Court reviewed this argument respectfully in light of the mandates of the United States Constitution and the Minnesota Constitution that all persons similarly-situated be treated alike under the law. See U.S. CONST. amend. XIV, § 1; MINN. CONST. Art. 1, § 2. ... Thus, to the extent Contestants' equal protection argument alleges "deliberate, serious, and material violation[s]" of Minnesota's election laws, this Court lacks jurisdiction to make findings or conclusions on these points and the matter is preserved for the United States Senate. See Minn. Stat. § 209.12 ("Evidence ... including ... the question of the right of any person to nomination or office on the ground of deliberate, serious, and material violation of the provisions of the Minnesota Election Law, must be taken and preserved by the judge trying the contest. .. ."); U.S. CONST. Art. 1, § 5, Cl. 1 ("Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members."); see also Odegard v. Olson, 119 N.W.2d 717, 719 (Minn. 1963). The Minnesota Supreme Court recently addressed this issue directly and ruled as follows: When the election contest concerns a congressional office, the only question to be decided is which candidate received the highest number of votes legally cast at the election. Minn. Stat. § 209.12 (2008). Nevertheless, evidence on any other issues specified in the notice of election contest is to be preserved and forwarded to the presiding officer of the Senate or House of Representatives of the United States, as the case may be. Id. Coleman v. Ritchie, 762 N.W.2d 218, 226 (Minn. 2009). Source: Findings of Fact, Conclusions of Law, and Order for Judgment via MNCourts.gov [PDF] The equal protection memorandum continues until page 56 and addresses many of Coleman's additional claim's by essentially stating that the 2008 Minnesota Senate Election administration was conducted in accordance with the US Constitution and the Minnesota Constitution. The ECC concluded their order by stating the following: The citizens of Minnesota should be proud of their election system. Minnesota has one of the highest voter-participation rates in the country. The Office of the Minnesota Secretary of State and election officials throughout Minnesota's counties and cities are well-trained, fair, and conscientious and performed their duties admirably. Minnesota could not conduct elections without the hard work and diligence of its dedicated professionals and citizen volunteers, and the Court is proud of their service. Source: Findings of Fact, Conclusions of Law, and Order for Judgment via MNCourts.gov[PDF] All that remains is for Gov. Tim Pawlenty (R) and SOS Mark Ritchie (D) to sign the Election Certificate as directed, although not legally obligated, by the above order. Coleman has 10 days to file an appeal to the MN Supreme Court, but the ECC states that the US Senate has the ultimate jurisdiction. Al Franken officially received more votes than any other candidate, but his path to the US Senate may still be lined with political obstacles. The Coleman campaign has already acknowledged their intent to appeal, and there are rumors that Tim Pawlenty may not sign the certificate until the appeals process has ended. In any case, Al Franken received the most votes, by 312, for US Senate in the State of Minnesota on November 4th, 2008. Update [3:08 AM CT]: I went ahead and parsed through Attachment A [CSV] and the results were mildly surprising: Record # Ballots Coleman: 110 Franken: 193 (194) Nauen: 36 (37) Contestee's SJ: 10 Testimony: 1 Total: 351 The parentheses denote a voter who was listed within both a Franken Exhibit and a Nauen Summary Judgment order. More than half of the 351 absentee ballots contained within Attachment A originated from evidence presented by the Franken Campaign. It's interesting to note that the number of ballots accepted from each campaign almost identically replicates the final result of the 351 ballots; the final allocation was Coleman 111, Franken 198 and 42 to Other. The most interesting inclusion does however come from a Coleman presented witness. If you recall from the litigation proceedings, Robert Peter DeMuth filled out his voter registration form with the aid of a computer by digitally signing his absentee ballot request form. Mr. DeMuth's ballot was included in the ECC certified result as the ECC only required that the voter sign the physical envelope; which Mr. DeMuth apparently did.

Published on April 13rd at 7:01 PM CT :: 7 Comments

On Tuesday, April 7th, the MN Senate Election Contest Court sat down at 9:30 AM CT with 387 absentee ballots and began the tedious process of opening, sorting and counting their contents. The counting process did not began for some time, but when it did, the court had identified 351 ballots which merited inclusion into the vote tally. The ECC court released the following order detailing the specific voters contained within the 351 identified ballots: This matter comes before the Court after its review of certain original absentee ballot materials pursuant to this Court's Order for Delivery of Ballots to Office of the Minnesota Secretary of State for Review by the Court. After review, IT IS HEREBY ORDERED: 1. The absentee ballots in the attached Exhibit A shall be opened and counted in accordance with Paragraph 4 of the Court's Order for Delivery of Ballots to Office of the Minnesota Secretary of State for Review by the Court. 2. Any other relief not fully set forth herein is expressly denied. Dated: April 7, 2009 [Exhibit A: List of 351 Voter's Names and County, CSV] Source: Order for Opening and Counting of Ballots via MNCourts.gov Parsing through the list revealed that 41 of the 42 Nauen Petitioner's identified within the ECC's request were also listed within the ECC's order for opening and counting. Each of the 41 voter's is assumed to have voted for Franken because the Franken campaign was funding their intervention. This leaves 310 voters with unknown allegiances; 10 of the 12 voter's identified within Contestee's [Franken] Partial Summary Judgment are also listed within this 310 vote subset. I updated my extrapolation to account for the 41 Nauen Petitioner's and the remaining 310 voters; I assume that the Nauen voters will break for Franken in a 90-5-5 fashion and that the 10 Partial Summary Judgement voters have no inclination to vote for one candidate or another: Extrapolations: ECC Accepts 351 Additional Absentee Ballots [PDF, 141KB] Identified Extrapolation Voters Coleman Franken ECC Ordered Opened 310 130.66 129.33 Coleman Regions 190 91.85 66.61 Franken Regions 120 38.82 62.72 Nauen Petitioners 41 2.05 36.90 Newly Orded 6 .30 5.40 Previously Ordered 35 1.75 31.50 Extrapolation Total 351 132.71 166.23 Actual Result 351 111 198 The Pioneer Press and the Star Tribune have both reported that the final resolution of these 351 ballots resulted in Franken increasing his lead by 87 votes from 225, to 312. At this point it seems unlikely that further ballots will be opened and counted, but the possibility does remain. The ECC also has yet to address the 133 (or 134) lost ballots in Minneapolis W3-P1 and any remedy to the Coleman campaign's argument of double counted ballots. It seems unlikely that a ruling will be released today, as the ECC just released an order clarifying the resolution of the Nauen Petitioners: This action came on for a court trial before the Honorable Elizabeth A. Hayden, the Honorable Kurt J. Marben, and the Honorable Denise D. Reilly, District Court Judges, beginning on January 26, 2009 and ending on March 13, 2009. Having considered the testimony and evidence adduced at trial, the exhibits admitted into evidence, the pleadings,' briefs and memoranda submitted by all the parties, and the arguments of counsel, the Court now makes the following: ORDER 1. Petitioners filed a Petition pursuant to Minnesota Statute section 204B.44 with the Minnesota Supreme Court on January 13, 2009. On January 16, 2009, the Minnesota Supreme Court issued an order granting Norm Coleman's motion to intervene in Petitioners' proceeding and further directing the Petition to this Court for consideration and decision within the current election contest. 2. Pursuant to the Court's Order Granting in Part and Denying in Part Petitioners' Motion for Summary Judgment (Feb. 10, 2009), Nunc Pro Tunc Order Correcting Order Granting in Part and Denying in Part Petitioners' Motion for Summary Judgment (Feb. 10, 2009). Order on Intervenor's Rule 60.02 Motion 10 Vacate Judgment (Mar. 2, 2009), Order Granting in Part and Denying in Part Petitioners' Renewed Motion for Summary Judgment (Mar. 11, 2009), and Order Granting Petitioners' Second Renewed Motion for Summary Judgment and Amending Order Granting in Part and Denying in Part Petitioners' Renewed Motion for Summary Judgment Dated March 11, 2009 (Mar. 31, 2009), the Court granted summary judgment with respect to the following Petitioners: 3. On March 31, 2009, the Court Issued an Order for Delivery of Ballots to.Office of the Minnesota Secretary of State for Review by the Court. The Petitioners listed above were identified in the Court's March 31, 2009 Order. [List of 36 Voter's Names and County, CSV] 4. On-April 7, 2009, the Court ordered the absentee ballot return envelopes of voters identified in an attached exhibit to be opened and counted by the Office of the Secretary of State in open court and the totals included in the results of the 2008 United States Senate election reported by the Minnesota Secretary of State. With one exception, the ballots of the individuals listed above were opened, sorted and counted by the Office of the Secretary of State in open court on April 7, 2009, pursuant to the Court's March 31, 2009 and April 7, 2009 Orders.1 5. With respect to the Petitioners not expressly identified herein, the Court has not been presented with sufficient individualized evidence in support of Petitioners' claims. The Petition with respect to those individuals is accordingly DISMISSED. 6. Any request for relief in these proceedings not specifically granted herein is denied. There being no just reason for delay. LET JUDGMENT BE ENTERED ACCORDINGLY. Dated: April 10, 2009 1The absentee ballot return envelope of Roxanna Saad of Dakota County was not opened and counted on April 7, 2009, after the Court determined Ms. Saad failed to fully complete a voter registration application. Source: Order Regarding Resolution of Petitioner's Motion via MNCourts.gov The above order details the 36 petitioner's listed within previous orders granting the opening and counting of their ballots, a number I arrived at on Monday. The final count, as noted above, included 35 of the 36 plus 6 other petitioners who had not previously been granted relief. This brings the grand total of relieved Nauen Petitioners to 41. I've updated my Nauen voter table to reflect the result of the counting procedure; the contents of this most recent order did not reveal any new information. It simply outlined the result of the Nauen Petitioner's and dismissed the remaining petitioner's request for relief: Extrapolation: Nauen Petitioners and ECC Ordered Opened & Counted Aftermath [PDF, 125KB] Despite the ECC's detailed and straightforward resolution of the Nauen Petioners, Rachel E. Stassen-Berger of the St. Paul Pioneer Press still managed to a provide inaccurate information: The order the court did issue today dismissed the case of the voters who sued on their own but haven't had their ballots counted. Sixty-one voters sued early this year to have their absentee ballot votes counted. That suit, which was funded by Franken, was folded into Coleman's larger suit. Thirty-six of those voters had their ballots opened and counted on Tuesday, along with 315 other absentee ballots. The results on those ballots boosted Franken's lead to 312 votes. Today, the judges said that the case of the other 25 votes was dismissed. [emphasis added to depict inaccuracies] Source: St. Paul Pioneer Press Rachel's entire article contained just 217 words, but three glaring inaccuracies: 1. There were 64 Nauen petitioners, not "sixty-one;" although three voters did eventually withdraw their claim.

Exhibit A: List of 64 Voters by Name and County, [CSV, 2KB]

Source: Petition by Certain MN Voters to Have Their Votes Counted via MNCourts.gov 2. Forty-one of the Nauen petitioners eventually had their vote counted; the "thirty-six" Rachel presents originates from today's order and tells me that she cannot read footnotes. Thirty-six voters were originally presented, but Roxanna Saad's ballot was never counted because it did not contain a completed voter registration form. 3. The "25" other votes should actually read 23, but its hard to get this number right, when the two previous numbers were completely wrong; 64-41=23. The ECC will probably present their ruling some time next week, at that point, the loser will have 10 days to present an appeal to the MN Supreme Court.

Published on April 10th at 6:31 PM CT :: 1 Comment

Before the court even begins counting tomorrow morning, thirteen ballots will be eliminated from their original request of 400. The Star Tribune is reporting, by way of the Deputy Secretary of State, that 13 of the 400 ballots have already been counted and were erroneously requested due to clerical errors. The relevant portion of the Star Tribune article is excerpted below: Deputy Secretary of State Jim Gelbmann said Monday that 13 of the 400 ballots on the judges' list had already been counted, on Election Day or during the recount, putting the number of ballots that might be added at 387. Once opened, outside envelopes -- which contain voters' names -- will be separated from the security envelopes that contain the original ballots, said Secretary of State Mark Ritchie. Poser will then sort the ballots into three piles -- Franken, Coleman and other. Source: Minneapolis Star Tribune This reduction of the potential pool of additional, countable absentee ballots will likely facilitate an MN Supreme Court appeal by Norm Coleman as the number of physical ballots quickly approaches his current deficit. Once the ballots are counted, hopefully by the end of tomorrow, the court still has other issues to confront before they present their ruling. Once the ECC determines the victor, the loser will have 10 days to appeal to the MN Supreme Court. In other related news, the Franken campaigns has asked the court to allow another attorney, Lisa Marshall Manheim from Seattle, WA to practice before the court: Contestee Al Franken hereby moves for permission for Lisa Marshall Manheim, attorney with Perkins Coie LLP, to practice before this Court pro hac vice in this matter. This Motion is based upon Rule 5 of the General Rules of Practice for the District Courts, the accompanying affidavit of Lisa Marshal Manheim, and the files and proceedings herein. Dated: April 6, 2009 Source: Contestees Motion f