Posted: February 25, 2009

Minnesota contest - Coleman's injunction denied, hearing on Franken's motion in limine, looking ahead to appeals and issuance of election certificate

Last night, the Coleman v. Franken election contest court denied Coleman’s motion for a temporary injunction which had sought to stop the redaction of identifying information from the 933 absentee ballots counted by agreement of local officials and the campaigns. See the Star Tribune coverage here. This morning, the court heard argument on Franken’s motion to limit the evidence that Coleman can introduce. Coleman apparently seeks to introduce email responses of county officials about possibly lost registration records under the government records hearsay exception. Franken attorney Kevin Hamilton argued that such an exception encompasses documents produced because of the existence of a government duty and does not cover email replies to a question. Coleman’s attorney James Langdon argued that they seek to introduce facts from the local officials and that such statements need no cross-examination. Hamilton responded by saying that cross examination was essential and proper in a court of law and was not an attack on the integrity of election officials. Langdon mentioned precedent for their interpretation of the evidence rules in his argument and the court is giving Hamilton a short time to prepare a response to the cited authority. Judge Hayden emphasized that the court would like to issue an order quickly on the matter.

Looking ahead, MPR has this article about the appeals process and when contest-watchers can expect a certificate to be issued to a candidate. Minnesota law says that, in case of a contest, a certificate may not be issued “until a court of proper jurisdiction has finally determined the contest.” M.S.A. § 204C.40. That court may be the election contest court, it may not. But another provision in the chapter on election contests says, “After the time for appeal has expired, or in case of an appeal, after the final judicial determination of the contest, upon application of either party to the contest, the court administrator of the district court shall promptly certify and forward the files and records of the proceedings, with all the evidence taken, to the presiding officer of the Senate or the House of Representatives of the United States.” M.S.A. § 209.12. This provision does not explicitly mention an “election certificate” but implies that nothing shall be sent to the Senate until any appeals have been completed. Another provision about the results of election contests says when “the time for appeal has expired or, in case of an appeal, if the contestant succeeds in the contest, the court may invalidate and revoke any election certificate which has been issued to the contestee.” M.S.A. § 209.07. This provision appears to contemplate circumstances in which an election certificate could have been issued before the contest or any appeals were completed. How the contest court and possibly the Minnesota Supreme Court interpret these statutes remains to be seen.