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Election Law @ Moritz

Election Law @ Moritz

Information & Analysis

Coleman and Franken argue motion to dismiss

Lawyers for Coleman and Franken argued before the 3-judge election contest panel today over Franken’s motion to dismiss the suit. Franken’s attorney devoted most of his time to arguing that the panel did not have jurisdiction over the suit because the statute limits the panel’s jurisdiction to the question of which candidate received the most legally cast ballots and also because Coleman’s notice of contest was defective in its lack of specificity and its failure to ask the court to invoke its authority to take and preserve evidence to send to the Senate if Coleman were to bring a contest there. At the end of his remarks, Franken’s attorney briefly addressed Coleman’s allegations about allegedly rejected absentee ballots, allegedly double-counted ballots and missing ballots. He said that Coleman has failed to make clear the problems with the allegedly wrongly rejected absentee ballots, that Coleman has not alleged that any double-counting, if it occurred, was material to the election’s outcome and that the question of missing ballots is purely one of law with no factual dispute. Coleman’s attorney said that they had complied with the contest statute and procedural rules in filing the notice of contest. When asked, Coleman’s attorney said the pleading requirement was both notice and with specificity. He did not get a chance to clear this up. He also said that all that Coleman asks for falls under the umbrella of the court’s authority to determine how many legally cast votes each candidate received and to make findings of fact and conclusions of law on that point. Coleman’s team will be asking the panel to review several thousand rejected absentee ballots for possible inclusion in the count.

Here is the relevant portion of 209.12 with respect to jurisdiction of the court:

When a contest relates to the office of senator or a member of the house of representatives of the United States, the only question to be decided by the court is which party to the contest received the highest number of votes legally cast at the election and is therefore entitled to receive the certificate of election. The judge trying the proceedings shall make findings of fact and conclusions of law upon that question. Evidence on any other points specified in the notice of contest, including but not limited to 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, or by some person appointed by the judge for that purpose; but the judge shall make no findings or conclusion on those points.

Both attorneys mentioned the 1971 U.S. Supreme Court case Roudebush v. Hartke. Franken’s attorney said that Roudebush dealt with a recount which was part of the normal election process and not part of an election contest suit. Coleman’s attorney said that the U.S. Supreme Court decided in the case that the state courts have the authority to determine which votes can be counted. Franken’s attorney responded by again stating that Roudebush was not dealing with an adjudicative process such as an election contest, but rather an administrative recount.

Additional court filings and documents will be posted on our case page as they become available.


Daniel P. Tokaji

What's the Matter with Kobach?

Daniel P. Tokaji

By "Kobach," I mean the Kobach v. EAC case in which the Tenth Circuit heard oral argument Monday – rather than its lead plaintiff, Kansas’ controversial Secretary of State Kris Kobach, who argued the position of his state and the State of Arizona. This post discusses what’s at issue in the case, where the district court went wrong, and what the Tenth Circuit should do.

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In the News

Daniel P. Tokaji

Ohio treasurer receives OK to host town halls

Professor Daniel Tokaji was quoted in an article from the Associated Press about an attorney general opinion that allows the Ohio treasurer to conduct telephone town halls using public money. The opinion will likely have broad ramifications for the upcoming elections, Tokaji said.

“As a practical matter, while that legal advice is certainly right, very serious concerns can arise about whether these are really intended to inform Ohio constituents about the operations of his office or if they’re campaign events,” he said.

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Info & Analysis

Judge Denies Motion for Preliminary Injunction in NC Case

U.S. District Judge Thomas D. Schroeder denied the motion for a preliminary injunction sought by the plaintiffs in a case challenging a new North Carolina voting law as violating the Voting Rights Act and the federal Constitution. Judge Schroeder also denied the defendants' motion for judgment on the pleadings. The case is North Carolina NAACP v. McCrory.

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