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Election Law @ Moritz

Election Law @ Moritz

Information & Analysis

MN Senate race - Day 1 of the trial complete

The trial of the Minnesota U.S. Senate election contest began today. Each side gave lengthy opening arguments. Coleman’s attorney began and emphasized in his statement that the absentee ballots were by far the biggest issue and it will likely be dispositive. He only briefly addressed the original/duplicate and missing ballot issues. Franken’s attorney refuted the Coleman camp’s assertion that Minnesota officials had violated the rule of Bush v. Gore by treating absentee ballots in a non-uniform manner from county to county. He characterized the case as requiring “some assurance that the rudimentary requirements of fundamental fairness are satisfied”. Coleman’s first witness was the political director for his campaign. Franken’s attorney questioned her about copying errors made in Coleman filings that include absentee ballot envelopes. The day ended with the 3-judge panel interrupting the testimony of Coleman’s second witness so they could discuss Coleman’s plan to have ballots provisionally accepted by the court based on the photocopies of the ballots. The court sustained an objection by Franken attorney Marc Elias which cited the best evidence rule in seeking to stop the admission of evidence in this manner. The court denied a motion by Coleman last week to order the counties to deliver all rejected absentee ballots to the court but, today it determined that the Coleman campaign must obtain a fresh copy of the ballot envelopes from local officials. In a press conference outside the court, Coleman’s attorney indicated that copies of all 12,000 rejected absentee ballots will now need to be delivered to the court. It is unclear how much time the Coleman camp will be allowed to gather these documents. Franken has made a motion in limine to limit consideration of rejected absentee ballots to the 654 that Coleman mentioned in his notice of contest. See the motion here and Coleman’s response opposing the motion here. See the Coleman v. Franken case page here. Throughout the proceedings and in statements to the press today, Coleman and his team said that they seek to have all votes counted but only once. Franken’s team, on the other hand, said that Coleman was the one who originally wanted to keep the wrongly rejected absentee ballots out of the recount. Coleman’s position now appears to be that absentee voting is a right and not a privilege and that technical errors should not keep a ballot from being counted. This is similar to Democrat Mary Jo Kilroy’s argument in the Skaggs case over the counting of provisional ballots in the OH-15 Congressional race. See the Star Tribune coverage here.


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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