Posted: March 13, 2009

Final arguments concluded in the Minnesota U.S. Senate contest

Attorneys for Coleman and Franken just completed their closing arguments in the Minnesota U.S. Senate election contest.  Attorney Kevin Hamilton argued for Franken that 1) Coleman has submitted sufficient evidence for only 6 rejected absentee ballots to be considered for inclusion, 2) Coleman has not proven that double-counting took place, and 3) that the machine tapes are the best evidence of the votes cast on the 132 missing Minneapolis ballots and that these votes should remain in the count.  Hamilton repeatedly attacked the Coleman case for not meeting its burden with sufficient evidence to prove its claims.  Attorney Joe Friedberg argued for Coleman 1) that the standard for evaluating whether they have met their burden is preponderance of the evidence and that each element of registration, application and ballot submission need not be proved to an absolute moral certainty as Franken argues, 2) that the 132 lost ballots must not be counted because state law changed in 2008 to explicitly require “manual” recounts and because case precedent requires their exclusion, 3) that duplicate ballots ought to replace original ballots in the final count which will result in a closer match between the number of votes and voters, 4) that a due process violation exists because one standard was applied on election day as implemented by election officials and a new standard will be applied going forward if the court follows the standard from its Feb. 13 order, and 5) that an equal protection violation exists because the probability of a voter’s ballot counting varied based on where that voter lived due to non-uniform practices in accepting and rejecting absentee ballots.  Friedberg prefaced his arguments about the constitutional issues by acknowledging the difficulty of asking the judges to open their minds to these arguments in ways they have not wanted to thus far.  Friedberg also addressed the Bell precedent arguing that the court has heard ample testimony that challengers are not actually permitted to challenge improper absentee ballots and, therefore, Coleman is not barred by estoppel to challenge them now.  See further analysis of Bell here.  The attorneys are now meeting in chambers with the judges to work out scheduling details such as altering the deadline for both campaigns to submit certain certifications.