Posted: February 12, 2009

MN Senate contest - big hearing today on categories of rejected absentee ballots

Today’s hearing in the Minnesota U.S. Senate election contest covered 3 issues: 1) whether all voters whose ballots were rejected should be certified as a class along with the 61 Franken voters who petitioned the Supreme Court to have their votes counted, 2) whether testimony of Professor King Banian on variation in ballot rejection rates among the counties is relevant and admissible and, 3) whether or not the 19 categories of rejected absentee ballots were legally cast.

Attorney Freidberg argued for Coleman for class certification. Judge Marben asked him where a class action suit would get them given that there are legally cast votes and illegally cast votes. Freidberg replied that they were past that distinction, later clarifying that the definition of “legally cast” has expanded. The Franken voters’ attorney said that certifying all of the absent voters as a class is without precedent and would violate civil procedure Rule 23. Attorney Hamilton argued for Franken that the testimony of Coleman’s expert was irrelevant and, even if marginally relevant, would delay and confuse the proceedings and not aid the panel in determining who received the most votes. Attorney Langdon argued for Coleman that the testimony was relevant and necessary to fix the equal protection problem created by the widely varying rates of rejection. For example, Plymouth, a suburb of Minneapolis, rejected many more ballots than other counties for non-matching signatures while Carter County rejected far more than other counties for the reason that the witness was not registered to vote. Attorneys Langdon and Elias argued for Coleman and Franken respectively about which categories of rejected absentees should or should not be counted. Elias argued for strict compliance with the absentee ballot laws and Langdon argued for a more liberal construction and that the judges should presume that Minnesota voters honestly follow the law.

The trial will go until 1 PM tomorrow so the judges can take the afternoon to deliberate on today’s arguments. On Monday, more motion hearings will begin at 1 PM.  See our contest case page here.