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Election Law @ Moritz

Election Law @ Moritz

Information & Analysis

January, 2009

Below are postings from January, 2009. (See Archives | Recent Headlines)

Day 3 of MN U.S. Senate trial complete

Jan. 28 - The day began with the court denying a motion in limine filed by Coleman which had sought to exclude evidence of Coleman’s former position that improperly rejected absentee ballots should not have been revisited in the recount. The court has not yet ruled on Franken’s motion in limine which seeks to limit evidence on absentee ballots to only the 654 that Coleman mentioned in his notice of contest. So far, the judges seem willing to allow in much of the evidence that the two sides want to introduce while pointing out that they will only assign such evidence the weight it deserves ultimately. Deputy Secretary of State Jim Gelbman was back on the stand for the entire day. Coleman’s attorney finished his direct examination before lunch and Franken’s attorney began an extensive cross examination. Both sides’ attorneys painstakingly reviewed with Mr. Gelbman the events that took place from election day through the end of the recount. There was some discussion of a relatively new category of ballots during the Gelbman direct examination. These are the “Pile 3A” ballots that were sent out to non-registered voters who may have returned their ballots with their registration card inside the secrecy envelope instead of inside the outer envelope. These ballots have not been opened and counted and Gelbman thought they would probably number less than 50. The state has both card stock registration forms in circulation, which are easy to recognize through an envelope, and regular paper weight forms, which are harder or impossible to feel inside a secrecy envelope. The trial will resume tomorrow at 9 a.m. CT.

What is happening today in the MN U.S. Senate trial?

Jan. 27 - Day 2’s proceedings have not yet begun. Yesterday, the court determined that they could not determine how the election officials made their decisions to reject or accept absentee ballots if they did not have clean copies of the ballot envelopes with no notations or redactions done by the Coleman campaign. Besides looking at the ballot envelope, there are other criteria that may have factored into officials’ accept/reject decisions such as: when the ballot arrived at the elections office, whether the voter was registered, and whether the voter showed up to vote on election day in addition to casting an absentee ballot. Some bloggers present at the court have heard that the judges are working on an order or stipulation but no details are available. See the Star Tribune coverage here and the MinnPost.com coverage here.

Day 2 of the MN U.S. Senate trial complete

Jan. 27 - Once the trial resumed today, Coleman called several witnesses who had voted absentee in the election and whose votes had allegedly been rejected. The first voter said he was blind and that he had signed his ballot envelope in the place where his wife had indicated he should sign and that he believed his vote should be counted. All of the voters indicated that they had been contacted by the Republican party and had been informed that their ballots were rejected. Franken’s attorneys queried each voter about the notation on their ballot envelopes and asked each if the correct person to ask about such a notation was the person who made the notation. Some of the voters were confused by this but after several came to the stand, it seemed clear that Franken’s attorneys were making the point that the voters had little to offer in the way of evidence of whether and why their ballot may have been rejected. Deputy Secretary of State Jim Gelbman was on the stand for the rest of the day with Coleman’s attorney asking him in detail about the process that precinct and county officials go through in determining whether to accept or reject an absentee ballot. Gelbman did say that the signature was an area of discretion for the election officials so, for example, a ballot with James Richard Gelbman signed on the application and James R. Gelbman signed on the ballot envelope could be treated differently in different counties. But he implied that allowing for discretion in this area was unavoidable and the rules were otherwise clear and were implemented by professional full-time election officials in as uniform a way as possible. The day ended with one of Franken’s attorneys alleging that 500 names had been swapped out of Coleman’s list of wrongly rejected absentee ballots from last week and replaced with different names. It appeared that this would be addressed tomorrow.  *Analysis of the statute 203B.24 has been removed from this post. 

MN Senate race - Day 1 of the trial complete

Jan. 26 - 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.

MN Senate race - motions denied, pre-trial hearing happening now

Jan. 23 - The 3-judge panel in the MN Senate election contest denied motions of both candidates yesterday.  See EL@M Director, Edward Foley's explanation here.  The panel is holding a pre-trial hearing right now.  Details of today's proceeding will be posted here later today and additional documents and filings will be posted to the Coleman v. Franken case page.

MN Senate election contest trial begins Monday

Jan. 23 - The Minnesota U.S. Senate election contest trial begins Monday, Jan. 26.  See MinnPost.com's summary of events so far plus a prediction for what Monday will be like here.  The panel has denied Coleman's motion to have the absentee ballots delivered to them for another review, his motion to have inspectors sent to 86 precincts, and Franken's motion to dismiss the contest suit.  See the Pioneer Press coverage here and our case page here.

MPR seeks opinions of election law professionals

Jan. 22 - class="MsoNormal" style="margin: 0in 0in 0pt">Minnesota Public Radio is collecting the opinions of those in the election law field about what should happen or will happen in the Minnesota U.S. Senate race.  The survey is here.  This is part of their Public Insight Journalism initiative.


MN Officials Discuss Potential Reforms

Jan. 22 - Yesterday, Minnesota Secretary of State Mark Ritchie held a talk to discuss various potential reforms of the state's elections system.  Proposals included expanding the kinds of identification that are sufficient when submitting absentee ballots and changing the law so that mail-in ballots received after election day due to postal delays could still be counted.

Hearing on motion to dismiss today at 2:30 CT

Jan. 21 - Today’s hearing in the Coleman/Franken election contest will be filmed by media outlets says the 3-judge panel hearing the case. See the Star Tribune story here. Today, the panel will hear arguments over Franken’s motion to dismiss the suit. If the suit is not dismissed, the trial will begin Monday, Jan. 26. Franken argues in his motion 1) that Coleman has failed to comply with Minn. Stat. 209.12 and the court consequently lacks jurisdiction over the suit and 2) that, even if the court has jurisdiction over the case, Coleman has failed to state claims for which relief can be granted.

Coleman and Franken argue motion to dismiss

Jan. 21 - Lawyers for Coleman and Franken argued before the 3-judge election contest panel today over Franken’s motion to dismiss the suit. Franken’s attorney devoted most of his time to arguing that the panel did not have jurisdiction over the suit because the statute limits the panel’s jurisdiction to the question of which candidate received the most legally cast ballots and also because Coleman’s notice of contest was defective in its lack of specificity and its failure to ask the court to invoke its authority to take and preserve evidence to send to the Senate if Coleman were to bring a contest there. At the end of his remarks, Franken’s attorney briefly addressed Coleman’s allegations about allegedly rejected absentee ballots, allegedly double-counted ballots and missing ballots. He said that Coleman has failed to make clear the problems with the allegedly wrongly rejected absentee ballots, that Coleman has not alleged that any double-counting, if it occurred, was material to the election’s outcome and that the question of missing ballots is purely one of law with no factual dispute. Coleman’s attorney said that they had complied with the contest statute and procedural rules in filing the notice of contest. When asked, Coleman’s attorney said the pleading requirement was both notice and with specificity. He did not get a chance to clear this up. He also said that all that Coleman asks for falls under the umbrella of the court’s authority to determine how many legally cast votes each candidate received and to make findings of fact and conclusions of law on that point. Coleman’s team will be asking the panel to review several thousand rejected absentee ballots for possible inclusion in the count. Follow the link to view the relevant portion of 209.12 with respect to jurisdiction of the court.

Inauguration Day

Jan. 20 - Today is a day for commemorating the results of an election, not analyzing the electoral process.

Franken submits alternative trial schedule

Jan. 16 - The Franken campaign has submitted a document laying out a trial schedule and the order in which issues should be dealt with at trial.  They would like to begin the trial on Jan. 26 and have it last no more than 15 days.  Coleman, on the other hand, has suggested the trial start on Feb. 9 and proceed in stages, dealing first with a group of absentee ballots that the Coleman campaign claims were wrongly excluded.  The Franken campaign has suggested starting with the ballots that were recounted and included in the state canvass before moving on to other disputes.  See the Star Tribune coverage here.

MN Senate race - Hearing Jan. 21 on motion to dismiss contest

Jan. 16 - The Minnesota Supreme Court will hear arguments next Wednesday in a hearing on the Franken campaign's motion to dismiss the contest suit.  See the Pioneer Press report.  The contest will be tried beginning Jan. 26, 2009 according to one Minneapolis news report but, other news outlets say the full schedule has not been released yet.  More details will be posted as they become available.

Coleman prioritizes contest issues and Republican voters file new lawsuit over duplicates

Jan. 14 - The Coleman campaign has filed a proposed schedule for how to approach the issues in the election contest. The campaign would like to first address the absentee ballots that it alleges were wrongly excluded from the canvass. The proposal suggests that each new issue will only need to be reached in the trial if the preceding issue did not yield enough votes for Coleman to be declared the winner. See the proposed schedule here and the Star Tribune coverage here.  Republican voters are filing a new lawsuit over the alleged double-counting of original and duplicate ballots. See the Star Tribune story here.

Hearing scheduled, Coleman intervenes in Franken's suit for election certificate

Jan. 14 - Argument has been scheduled for Feb. 5 in Franken's suit seeking an election certificate for the U.S. Senate seat.  Norm Coleman was permitted to intervene in the suit.  See the Star Tribune coverage here and the Franken v. Pawlenty case page here.

Franken campaign files motion to dismiss contest

Jan. 13 - See the motion here and the supporting memorandum here. The campaign claims that the Minnesota contest court is very limited in its jurisdiction over the contest and which questions it may resolve in such contests. It also emphasizes that the U.S. Senate is the sole judge of the election of its members. The memo says that Minnesota law (209.12) confers narrow authority on the contest court to decide how many votes were cast for each candidate in a congressional election while the rest of the chapter on election contests confers broader authority on courts to make factual findings and legal conclusions about election irregularities in other types of contests. In the case of elections for U.S. Senate, the Franken campaign argues that a contest court may only take and preserve evidence of irregularities but may not make findings and conclusions. The Franken memo also argues that no amendment can be made to the notice of contest so that it will satisfy the requirement of specifying the grounds for the contest because the time for filing a satisfactory notice has expired. It also argues that even if the court had jurisdiction over the matter, the Coleman campaign has not stated claims for which relief may be granted. See the Pioneer Press coverage here. More analysis of the arguments of both sides and the law governing this contest will be posted here this week.

Franken goes to MN Sup. Ct. seeking election certificate

Jan. 13 - Al Franken is now taking his quest for an election certificate to the Minnesota Supreme Court.  See the petition here and Star Tribune coverage here.  More details will be posted soon.

Voters file suit in Minnesota challenging rejection of their ballots

Jan. 13 - A group of voters have filed suit in the Minnesota Supreme Court challenging the rejection of their ballots.  See the petition here on our case page.  More details to follow.

Franken answer in contest and lawyers group responds to DFL complaint

Jan. 13 - The Franken campaign has filed its answer and counterclaims (17MB document) in the election suit brought by Norm Coleman after yesterday filing a motion to dismiss the suit.  In other news, the Republican lawyers group that the Minnesota DFL party accused of illegally contributing to Norm Coleman's recount fund says it has not done so.  Though fundraising letters have referred to the race, the group says the money it raises is not spent in coordination with the Coleman team but rather on communications with the press and the public about the race.  See the Minnesota Post story here.

MN Senate race - talk of reviewing even more ballots

Jan. 12 - Not much has changed in the story of the election contest.  The 3-judge panel has not been announced and no new documents have been filed in the suit.  The Star Tribune had a weekend story, however, about the Coleman campaign's effort to review more ballots than have so far been contemplated.  The campaigns have requested thousands of documents from the counties to aid their determination of what else should be considered in this contest.  Some counties took another look at all or some of the 654 absentee ballots that Coleman claims should have been reconsidered for inclusion.  So far, only one of these, from Mower County, is now being considered for inclusion because officials believe the signatures on the application and the ballot do in fact match.  The St. Paul Legal Ledger spoke with ex-Secretary of State Mary Kiffmeyer who believes absentee ballots should not have been included at all in the recount.  She also suggested that wrongly accepted absentee ballots should have been reviewed in addition to wrongly rejected ones but acknowledged that would require a huge effort by officials.  The campaigns did not raise the issue of wrongly accepted absentee ballots during the recount.  The Minnesota Independent has a story about the cost to a voter to challenge the rejection of their ballot.  One Minnesota lawyer estimates it to be $3,000-5,000.  

Franken asks state officials for election certificate

Jan. 12 - The AP reports that the Franken campaign has sent a letter to Minnesota Governor Tim Pawlenty and Secretary of State Mark Ritchie asking that they issue an election certificate to Al Franken so that he may be seated by the Senate.  The letter says that the Senate shall be the judge of the election and qualifications of its own members and that the ongoing election contest should not stop the two officials from issuing the certificate.  The Senate last week said that it would not seat Roland Burris, who was appointed by a scandal-tainted Governor Blagojevich to fill President-elect Obama’s Senate seat, without a certificate signed by the state’s governor and secretary of state.  This implies that they will not seat a winner from Minnesota without a certificate either.  However, the same AP report questions whether Senate rules require a certificate or just provide recommendations for the form of such certificates and the keeping of records.  Illinois’ attorney general says no law requires the Secretary of State’s signature on appointments.  The Franken campaign plans to file documents in Coleman v. Franken later today.  Any new filings will be posted to our case page.

MN governor and secretary of state deny Franken's request for election certificate

Jan. 12 - In rejecting the Franken campaign's request for an election certificate, both the governor and secretary of state said that Minnesota state law is clear that an election certificate cannot be issued until all election contests are resolved.  The request had claimed that federal law trumps state law and requires the issuance of a certificate.  Franken's attorney said a group of voters will be filing a lawsuit today challenging the rejection of their absentee ballots.  See the Star Tribune report here.

Minnesota recounts: differences between 1962 and 2008

Jan. 12 - The Star Tribune has a column analyzing some of the differences between the 1962 gubernatorial race recount and today’s Senate race recount and contest. Here are some of the differences:

  • The law back then did not provide for the automatically triggered administrative recount that Minnesota has today. That provision was not enacted until after the chaotic presidential recount in Florida in 2000.
  • There were 97,000 challenges in the ’62 race contrasted with only about 6,600 in the '08 Senate race.
  • Incumbent Andersen stayed in office while the election contest was litigated resulting in his eventual defeat by challenger Rolvaag.
  • One of Coleman’s strategies is to seek the inclusion of selected absentee ballots that have thus far been rejected by election officials or the Franken campaign. Rolvaag sought to exclude more absentee ballots in his contest. The contest court in '63, however, upheld the decisions of local officials on the inclusion and rejection of absentee ballots.
  • The columnist emphasizes that Coleman likely faces more national pressure to continue fighting than did Andersen in 1963. She cites EL@M Director Edward Foley’s position that neither candidate should appeal the decision of the contest court if it viewed as a neutral body and is unanimous in its opinion.

Justice Page appoints 3-judge panel to hear MN Senate election contest

Jan. 12 - Justice Page has appointed the 3-judge panel that will try the election contest of Minnesota's Senate race.  The panel consists of Judge Elizabeth A. Hayden, 7th district, Judge Kurt J. Marben, 9th district, and Judge Denise D. Reilly, 4th district.  See the order here and the Star Tribune report here.  The appointed judges include one Republican appointee, one Democratic appointee and one named by an independent governor.

Minnesota DFL party files FEC complaint against Norm Coleman

Jan. 12 - A new conflict has arisen in relation to the Minnestoa Senate race.  The DFL party has filed a complaint against Norm Coleman for allegedly not adhering to campaign finance rules during the recount.  The complaint requests that the FEC investigate its claims of possible violations of FECA and BCRA and fine the Coleman campaign if there has been any non-compliance.  The complaint also seeks to enjoin any non-complying activity that might be discovered.

MN Senate race: contest panel not yet appointed

Jan. 9 - The Minnesota Senate race is now in the election contest stage.  Minnesota statewide contests are decided by a three-judge panel appointed by the chief justice of the Minnesota Supreme Court.  Chief Justice Eric Magnuson served on the state canvassing board and has thus recused himself from the appointing duty.  The next most senior member of the Court is Justice Alan Page.  He has not yet appointed anyone nor has he indicated whether he will seek the agreement of the campaigns on the compostition of the panel.  Here are some of the news stories out today:

  • The Minnesota Independent has a story about what's next in the contest process that discusses Page's background and current role.  Another story reports that ballot form and design are unlikely to be changed if any election reform takes place in the near future.  Legislators from both parties said correct completion of the ballot can be achieved with better poll worker training and voter education.
  • The Minnesota Post has a recap of some events from the recount and state canvass that includes some analysis of the current Minnesota Supreme Court.  One expert says the Court was largley in agreement in its 2008 decisions but that its so-called liberal members are often on different sides of issues. 
  • The Pioneer Press has a story about some of the voters who have just received notice that their absentee ballots were not counted.  One woman's ballot was rejected by the Coleman campaign because it was witnessed by a notary in Texas who did not include the notary seal.  She said she voted for Coleman and is considering legal action.  The Coleman campaign is contacting selected voters whose ballots were rejected to see if they are interested in challenging the rejections.
  • Many editorials have been written about Coleman's right to challenge the election results with most authors guessing that Franken would have done the same had the recount and canvass ended in Coleman's favor.  The Star Tribune reports that a recent poll found that a slight majority of Minnesotans think Coleman should concede.  Forty-nine percent disagree with Coleman's effort to overturn the recount result and 42 percent agree with it.


MN Contest Court: Justice Alan Page to Appoint

Jan. 7 - The Star Tribune reports that Chief Justice Magnuson has recused himself from exercising his office's statutory authority to appoint the 3-judge panel to hear Coleman's contest, because he served on the 5-member canvassing board that conducted the recount.  According, Justice Alan Page will exercise this authority.  This development is significant because the identity of the three judges will affect how the contest is handle--and how the public perceives it.  Will Justice Page exercise his appointing authority in the same way that the Chief Justice would have?  One may never know, but when the contest ends, will people wonder whether it made a difference who got to pick the 3-judge panel?

MN Senate race – Coleman files election contest

Jan. 6 - Norm Coleman held a press conference today while his legal team filed an election contest. See the notice of contest here. The same issues that have been raised in the last several weeks are discussed in the complaint such as duplicate ballots, a number of ballots that went missing between election night and the recount and the uniformity of the procedure for including absentee ballots. Coleman’s campaign said it didn’t know if Chief Justice Magnuson could legally recuse himself from the job of selecting the 3 appellate or district judges that will serve as the panel that hears the contest. They noted that Justice Magnuson’s canvassing board duties are now completed but that he may ultimately recuse himself if an appeal of this contest reaches his court. Justice Alan Page was the acting chief while Justice Magnuson sat on the board. Franken’s attorney noted that Justice Magnuson might not want to select the judges because of his service on the canvassing board. Neither campaign explicitly stated whether they would seek to have a voice in the selection of the 3-judge panel. In the 1962 gubernatorial election, the two candidates involved in the contest came to agreement on the composition of the panel and this likely lended credibility to the ultimate result.

Minnesota Senate race – Franken comes out ahead in state canvass

Jan. 5 - The Minnesota state canvassing board will announce the results of their canvass at its meeting today at 2 p.m. CST. Franken is ahead by 225 votes. The Minnesota Supreme Court has not acted on the motion by Coleman to alter the standard for including or rejecting absentee ballots. Coleman alleged that counties were interpreting the standard in a non-uniform way resulting in similarly situated ballots receiving different treatment from county to county. Whether or not the Supreme Court weighs in on the absentee ballots, Coleman will also have seven days after the canvass to file an election contest lawsuit before a winner is officially certified. It remains to be seen whether the Senate will conditionally seat Franken while any litigation plays out. See the latest from the Star Tribune here.

MN Sup. Ct. denies Coleman’s motion

Jan. 5 - The Minnesota Supreme Court has denied Coleman’s motion requesting that the Court order all absentee ballots that officials or the campaigns identified as having been wrongly rejected sent to the Secretary of State for final determination of whether to include them in the canvass. The court unanimously concluded that disputes over absentee ballots must be handled in an election contest suit instead of in the automatic recount process. See the order here on our case page. The canvassing board meets today at 2 p.m. CST to announce the results of the state canvass. See prior EL@M coverage of the race here.

Minnesota Senate race - recount ends with Franken on top

Jan. 5 - The Minnestoa state canvassing board finished its final meeting today announcing that Al Franken has captured 225 more votes than Norm Coleman.  In seven days, if no election contest has been filed, the governor will issue an election certificate to Al Franken.  EL@M is watching to see if the Coleman campaign will fight today's result in an election contest suit.  All of the board members commended Secretary of State Mark Ritchie and his staff for a job well done.  Two board members alluded to the potential for legal action now that the recount and canvass are completed.  See the latest from The Star Tribune here.

*Update: Coleman campaign attorneys have told the press that an election contest suit is inevitable.  See the AP story here.

Minnesota state canvassing board begins counting absentee ballots

Jan. 3 - The Secretary of State’s staff is meeting today with campaign representatives to begin counting over 900 absentee ballots that both campaigns agree should not have been rejected. The Supreme Court has, as yet, issued no additional orders in Coleman v. Ritchie in response to Coleman’s petition that seeks to alter the standard for determining which rejected ballots should now be included in the canvass. In the absence of Court action, the counting was set to begin today as originally scheduled. Soon after the meeting began, a recess was called while the opinion of the Attorney General was sought on the question of whether the absentee ballots ought to be marked in a way that makes them identifiable as evidence in potential future litigation. The Coleman campaign’s position was that the Court’s Dec. 24 order did not completely supersede it’s Dec. 18 order which included the requirement to keep the ballots identifiable. The Supreme Court’s order of Dec. 24 had no stipulation that ballots be numbered to preserve evidence and Attorney General Lori Swanson agreed with Franken’s representatives that the Dec. 18 order was superseded by the order of Dec. 24. However, Swanson still recommended that the Secretary’s staff number the ballots because of the strong likelihood of future litigation by one or both of the parties. Deputy Secretary of State Jim Gelbman informed the campaigns of this decision and staff members assured everyone that voter privacy will be preserved. Each ballot is inside a secrecy envelope which is inside a white return envelope. Each of these three pieces will be numbered and the names and numbers will not be made available to the public.

Franken and Officials Respond to Court Order

Jan. 3 - The Franken campaign argues that the Coleman request for a revised procedure to consider rejected absentee ballots violates the terms of the "Protocol" that Coleman agreed to and would be beyond the court's power.  The Secretary of State, and local officials, argue that they have complied with the court's previous orders.  The court is expected to either rule directly on Coleman's request or shedule oral argument on it.  The documents are available on our case page.

Minnesota Senate race - absentees may be counted tomorrow

Jan. 2 - The Minnesota Senate race continues.  The Coleman campaign requested an emergency order from the Minnesota Supreme Court on Wednesday that may affect which absentee ballots get counted.  See previous postings here.  The Court has not yet ruled on this motion.  The opening and counting of ballots by the state canvassing board is still set to begin tomorrow but this may change if the Court changes the process of determining which ballots to count. 

Minnesota Supreme Court orders responses due by 9am tomorrow

Jan. 2 - The Minnesota Supreme Court has ordered all parties to file any responses to Coleman’s petition by tomorrow at 9 a.m. The counties must also inform the court as to whether they considered additional ballots suggested for inclusion by either of the campaigns and their reasons if they declined to consider additional ballots. See the order here.  Minnesota law will not allow the governor to issue a certificate of election while election contest suits are pending making it unlikely that a Senator will be seated by January 6. The campaigns are expected to have agreed to the inclusion of about 900 absentee ballots of the 1,346 identified by local officials as wrongly rejected when counting begins tomorrow. However, the Minnesota Supreme Court could revisit the standard for determining which ballots to include. Some, including Minnesota governor Tim Pawlenty, have questioned the Court’s earlier decision to turn over the decision of whether a voter’s ballot may count to the campaigns. Voters themselves can challenge the rejection of their ballot in the state Supreme Court but it will likely be too late for any that were wrongly rejected by the officials or either of the campaigns to be included in the state canvass. See the Star Tribune coverage here.

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

Jan. 1 - 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 at the end of the state canvass. See the Star Tribune coverage here. This morning, the court heard arguments on Franken’s motion to limit evidence. 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 from attorneys in an election contest. Coleman’s attorney James Langdon argued that they seek to introduce facts from the local officials and that such statements by the officials need no cross-examination. Hamilton responded by saying that cross examination is essential and proper in a court of law and that requiring it is 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 Minnesotans can expect an election 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 where an election certificate may have been issued before the contest or any appeals were completed.

NY-20 congresisonal race now tied

Jan. 1 - The NY-20 race is still in the counting stage and the candidates are now tied according to the most recent report. The Albany Times Union reports that 3,000 of the outstanding absentee ballots were cast by Republicans, 2,200 by Democrats, and 940 by unaffiliated voters. This MSNBC piece from last week discusses candidate Tedisco’s residency situation. He was not permitted to vote for himself in the special election because he does not live in the district. He has said he will move to the district if elected. The piece lists several other elections that have been decided by one vote over the years.  A hearing was scheduled for today about the counting of absentee ballots.  Military and overseas ballots have until next Monday, April 13, to arrive.

Coleman back to MN S.Ct. over Absentee Ballots

Jan. 1 - On New Year's Eve, Norm Coleman filed an emergency motion in the Minnesota Supreme Court claiming that the agreed-to procedures for reviewing rejected absentee ballots had broken down and violated Equal Protection and Bush v. Gore.  Focusing on absentee ballots rejected because the signature on the return envelope does not match the signature on the application for an absentee ballot, Coleman alleges that the procedures for reviewing these ballots differ from county to county, risking that some similarly situated ballots will be counted will others will not.  The motion asks that all absentee ballots that either campaign or local officials believe to have been improperly rejected be submitted to the Secretary of State for a uniform review. 

If the Franken campaign has submitted a brief to the court in response, it is not yet available.  But reports in the Star-Tribune and Pioneer Press indicate that Franken will oppose this motion as an improper "do-over" of procedures largely completed already, with the Secretary of State taking the same position.  It is unclear whether local officials will also object to being excluded from the process, especially as the legal premise for the review procedures undertaken pursuant to the Minnesota Supreme Court's previous order was that, prior to an election contest, review of rejected absentee ballots could only occur with the consent of local officials.  (For other documents in this case, see 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.

more commentary...

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.

more EL@M in the news...

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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