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Election Law @ Moritz

Election Law @ Moritz

Information & Analysis

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.


Edward B. Foley

Of Bouncing Balls and a Big Blue Shift

Edward B. Foley

It is a fortuitous coincidence that the University of Virginia’s Journal of Law & Politics has just published a piece of mine that shows the relevance of the current vote-counting process in Virginia’s Attorney General election to what might happen if the 2016 presidential election turns on a similar vote-counting process in Virginia. 

Read full post here.

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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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