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Election Law @ Moritz

Election Law @ Moritz


Information & Analysis

February, 2009

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

Minnesota contest court vacates yesterday’s order striking testimony, will allow witness to finish testifying

Feb. 26 - The Minnesota contest court yesterday ordered the testimony of election judge Pamela Howell stricken from the record after it was revealed that Coleman’s attorneys had failed to share with Franken’s team a document that she had provided to them. The witness also viewed the document during a break in her cross examination. The document contained Ms. Howell’s typed notes about possible double-counting on election day. This morning, the contest court vacated its order finding that Coleman’s legal team, in failing to disclose the document, had acted inadvertently and without bad faith and that Franken would not be “substantially prejudiced” by the inclusion of this testimony.  The court noted that Coleman’s side has repeatedly failed to meet its disclosure duty but, apparently, the judges are reluctant to exclude testimony because of such failures.  See our case page here.

Coleman seeks to vacate another order, Franken opposes uncounting ballots

Feb. 26 - While the contest court voluntarily vacated its own order of yesterday that had struck the testimony of a Coleman witness, the Coleman team is asking the court via a Rule 60.02 motion to vacate its Feb. 10 order that granted summary judgment to some of the Nauen voters. Coleman alleges that these votes were accepted despite not meeting the standard for legally cast ballots that the court laid out in its Feb. 13 order. Meanwhile, Franken filed this memorandum opposing Coleman’s motion to have the Feb. 13 order applied to all absentee ballots cast in the Senate race.

Contest court grants Franken's motion in limine

Feb. 26 - The Coleman v. Franken contest court today granted Franken’s motion in limine to exclude evidence sought by the Coleman team from local officials as to the circumstances of certain absentee voters’ registrations and ballots. The Coleman team argued that this kind of record must be given to them under the Minnesota Government Data Practices Act and should be admissible as a government record under Minnesota's Rules of Evidence. The court concluded, “While the MGDPA requires a government official to provide access to existing public data, nothing in the language of the Act compels an official to create data, to undertake an investigation, or to summarize the official’s conclusions or opinions in writing for use in litigation.”  The court also found that replies to Coleman's request would be inadmissible hearsay. 

Confusion over ballot envelopes from St. Louis County

Feb. 26 - Yesterday afternoon, Coleman attorney Ben Ginsberg gave a press conference in front a display of St. Louis County absentee ballot envelopes that he believed were defective resulting in illegally cast ballots. In total, he alleged that, according to the court’s definition of legally cast ballots, around 300 ballots from the county may have been illegally cast and included in the count. However, new information suggests that these ballots may actually have been cast in compliance with the court's view of what is legal but that they were separated from the actual envelopes in which they were returned and placed in regular absentee ballot envelopes (blank ones) for storage. St. Louis County officials claim not to have known the ballot records were being used in litigation. It is not clear why the ballots were ever transferred to blank absentee envelopes in the first place or if the original mailing envelopes were retained. See the Bemidji Pioneer story here and our case page here.

Book review of From Registration to Recounts published in Election Law Journal

Feb. 26 - Robert Montjoy of The University of New Orleans has written a book review on Election Law @ Moritz’s book From Registration to Recounts. The reviewer appreciated the book’s elections ecosystem concept which emphasizes that the components of election administration are interrelated and interdependent. He also found that our general recommendations would work to stimulate discussion and debate on possible election reforms. The Election Law Journal is a subscription journal and the article’s citation is 8 Election L.J. 59.

Coin-flipping: Is it a good idea?

Feb. 25 - In 2006, Indiana University law professor Mike Pitts published an entertaining law review article in which he argued that, when an election is so close that it amounts to a "statistical tie," the judiciary should acknowledge this by not even attempting to determine the "true" result. Heads or Tails? A Modest Proposal for Deciding Close Elections, 39 CTLR 739 (Dec., 2006). Instead, Pitts argued, they should just flip a coin to determine the winner and be done with it. Pitts argument was an obvious reaction to the morass of 2000, but similar sentiments have been echoed in the New York Times and regional newspapers since the Minnesota Senate recount began. But is coin-flipping really a good idea, or just a provocative one?

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

Feb. 25 - 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.

Minnesota election contest - Franken challenges found votes, Coleman may be done by end of week

Feb. 24 - Yesterday’s order by the contest court in Coleman v. Franken, while granting Franken summary judgment in part, denied summary judgment regarding the missing envelope of 133 ballots from a Minneapolis precinct. The court found that issues of material fact still exist with respect to those ballots. Franken seeks to exclude 61 ballots from a Coleman-leaning area of Becker County that he alleges were not handled according to proper chain of custody procedures. The ballots were counted for the first time during the recount after being found in the county auditor’s office in an unsealed box. They yielded a 19-vote advantage for Coleman. See the report here. Coleman attorney Ben Ginsberg said yesterday that they may be done presenting their case at the end of the week. See the latest from the Star Tribune here. Franken attorney Marc Elias said they would move to dismiss once Coleman is finished and will be ready to present their case if the court decides to continue.

Minnesota contest - Franken amends answer and counterclaims, state elections director testifies

Feb. 24 - Today in Coleman v. Franken, Minnesota Elections Director Gary Poser was on the stand again. The Pioneer Press reports that Franken’s attorney David Lillehaug went through many of the ballots that Coleman claimed were wrongly rejected for registration defects with Poser who testified that the registrations were indeed defective and the ballots correctly rejected. There is still confusion on this point because Coleman contends that, based on what they heard today from Poser, they believe some voters cast an absentee ballot that was initially rejected, after which they may have voted in person on election day. They contend that these voters’ rejected absentee ballots were then counted during the recount process. This situation should be clarified in the next day or two. Franken filed an amended answer and counterclaims today – see it here. Another batch of Franken voters have filed a lawsuit to have their votes counted – see the petition here.

Minnesota election contest - Class certification denied, Franken's motion for summary judgment granted in part, denied in part

Feb. 23 - The Coleman v. Franken contest court tonight, in response to Franken's Jan. 21 motion for summary judgment on certain claims, ordered that 12 more ballots be opened and counted in Minnesota's Senate race and that more evidence is needed before summary judgment may be granted as to the validity of other ballots.  The original motion for summary judgment is here.  The court also tonight denied certification of a class that would have included all absentee voters whose ballots were rejected.  See that order here.

Coleman seeks to apply Feb. 13 order to all 290,000+ absentee ballots

Feb. 23 - Coleman now seeks to have the contest court's Feb. 13 order partially defining what constitutes an illegally cast ballot applied to all 290,000+ absentee ballots cast in the 2008 election.  See the memo supporting the motion here.  The MinnPost.com story is here and the Pioneer Press story is here.  Other Coleman v. Franken documents can be found here.  In the memo, Coleman does not propose a specific method for removing any illegal votes.  It instead focuses on the right of and need for the court to determine which votes were legally cast and to count only those. 

Coleman seeks temporary injunction against commingling the 933

Feb. 20 - The Coleman v. Franken contest saw a new development today in Coleman's approach.  The Coleman campaign moved to stop redaction of tracking numbers on the 933 initially rejected absentee ballots that were counted in the state canvass after a second review by the counties.  State officials were nearly half finished with the redaction, however, when the filing was made.  See the motion here and memorandum of support here.  Coleman and Franken stipulated on Feb. 3 that these ballots were properly and lawfully included in the canvass and contestant Coleman agreed to dismiss all claims related to the 933.  This was 10 days before prior to the court's ruling last Friday which appears to require the exclusion of other absentee ballots that are similarly situated to some of the 933.  Coleman's side now says that some illegal ballots are being included while other illegal ballots are being excluded and says this is an Equal Protection violation.  The Franken campaign believes the court has disposed of such a claim already but, on Feb. 18, asked the court to clearly articulate its position on Coleman's Equal Protection claim.  After today's move by Coleman, Franken's side is suggesting "unspecified sanctions" against Coleman's legal team.  See the Star Tribune coverage here and MinnPost.com coverage hereUpdated 6:55 PM EST: Franken has filed a memo opposing the temporary injunction and, in it, requests that the court establish a hearing and briefing schedule for the Franken team to move for Rule 11 sanctions against Coleman's lawyers.  Franken also filed a new memo today on the requirements for offers of proof made by the Coleman team to preserve issues for appeal.

Minnesota contest court denies Coleman's request for reconsideration of its order

Feb. 18 - The contest court denied Coleman’s request to make a motion for the court to reconsider its order from last Friday on the 19 categories. See yesterday's 1-page order here.  In Friday's order, the court reasoned that strict compliance with absentee ballot laws is required by Minnesota statute and precedent. Coleman argued in his request that the order now defines illegally cast ballots so broadly that some ballots already accepted by the court now fall under the label of illegally cast. Coleman’s team says they do not want to “uncount” ballots but rather, they want a universal standard to apply across the state. They have repeatedly given the example of Carver County where officials checked to make sure the witness was a registered voter and rejected ballots where this was not the case whereas, in Scott County and the city of Minneapolis, this check was not done at all or not done to the same extent as in Carver County.  Franken's attorneys have said in press conferences that Coleman may be preparing for an appeal.  One Coleman attorney also alluded to this matter potentially reaching the Minnesota Supreme Court if the contest court did not resolve what Coleman's side sees as an equal protection violation. 

Minnestoa contest continues; Franken submits memo opposing Coleman's offer of proof

Feb. 18 - Franken's side submitted a memorandum to the court asking that the court accept Coleman's offer of proof to preserve the record for appeal but to reiterate its rejection of Coleman's Equal Protection claims on substantive and procedural grounds.  The memo argues that the Equal Protection clause does not "constitutionalize every minor error and inconsistency" in elections.  It also argues that Coleman presented his case in such a way that it is limited to consideration of less than half of all rejected absentee ballots thereby making it impossible for the court to apply a uniform standard to all rejected absentee ballots.   

Contest court grants Franken's motion to exclude Coleman's witness

Feb. 18 - The court this evening granted Franken's motion in limine to exclude the testimony of King Banaian whom Coleman was going to present as a statistical expert to discuss the variation in absentee ballot rejection rates among the counties.  The order is brief and simply says that Professor Banaian's testimony would not assist the court in determining the issues properly before it.  The court explicitly states that the only question it must decide is who received the most legally cast votes.  The order also says "it is irrelevant whether there were irregularities between the counties in applying Minnesota Statutes 203B.12, subd. 2. prior to this election contest."  The Coleman side has been saying that ballots the court now defines as illegally cast were counted on election day but, they have also said that the court's orders may be treating similarly situated ballots differently within this election contest (e.g. the Nauen ballots and the 933 ballots). 

Coleman side wants court to reconsider Friday's order on the 19 categories

Feb. 17 - Coleman's legal team has sent a letter requesting permission to file a motion asking the court to reconsider parts of their order on the 19 categories of absentee ballots.  The letter asks that the court use the same standards that most of the counties and municipalities used on election day.  The letter also says that, if Friday's order is followed, different standards will be used in evaluating the outstanding absentee ballots than were used to evaluate the Nauen voters' ballots and the 933 ballots that were deemed valid by the counties and the campaigns after the second review ordered by the Minnesota Supreme Court.  See the MinnPost.com coverage here and our case page here.

Minnesota election contest update

Feb. 16 - Court proceedings were very brief today with a normal full day expected tomorrow.  Coleman's attorney, Ben Ginsburg, said that ballots that have already been counted from the Nauen group of Franken voters or the 933 that were counted after the Supreme Court-ordered review by the counties are now being labeled as illegally cast in light of Friday's order.  He was asked whether votes can be "uncounted" and he said he did not know but also that they are not asking for votes to be uncounted but rather, for a universal applicaiton of the counting rules.  Ginsburg also said that the remaining ballots appear to be from Coleman-leaning precincts but it remains to be seen how many of these can be proven to have been wrongfully rejected and legally cast and thus added to the count.  See the latest from MinnPost.com here

Order issued by 3-judge panel in Minnesota Senate contest

Feb. 13 - Minnesota's 3-judge election contest court issued an order this evening about which categories of absentee ballots were not legally cast in the November 2008 election.  Ballots in 12 of the categories will not be counted because they were not legally cast under Minnesota law.  See the order here and Star Tribune coverage here

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

Feb. 12 - 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

Minnesota election contest - hearing Thursday on categories of absentee ballots

Feb. 11 - The 3-judge panel has ordered Coleman and Franken to file briefs on whether 19 different categories of absentee ballots were legally cast. A hearing will be held on these issues Thursday at 1 p.m. CT. See MinnPost.com’s coverage here, the Star Tribune’s coverage here, and the order here. The judges will also hear arguments on whether to admit the testimony of a Coleman witness about the variation in rejection rates of ballots among counties.

Dakota County official still on stand in Minnesota contest

Feb. 11 - Dakota County Election Director Kevin Boyle is still on the stand today. Over the last few days, he has testified that there are still ballots that were improperly rejected and should probably now be counted. These include ballots on which election judges did not write a reason for rejection and ballots that judges originally thought contained signatures that didn’t match the signatures on the ballot applications. Yesterday’s Star Tribune coverage discusses this issue here. Coleman’s attorney calculates that at least 80 ballots from Dakota County should now be opened and counted as a result of Boyle’s testimony. Today, Franken’s attorney questioned Boyle about ballots that the Coleman campaign vetoed during the ballot review process ordered by the Minnesota Supreme Court. Coleman has a website listing the names of voters that he claims Franken wants to disenfranchise. But Franken’s attorney pointed out in court the names of 10 voters whose ballots Coleman himself objected to counting. See the story here. Franken’s attorney also questioned Boyle about whether Minnesota law provides that voters’ errors may be excused by election officials’ errors. Boyle answered that he does not think official error excuses voter error. Minnesota rules do require that election officials check that envelopes are sealed and that certificates are properly completed when voters return absentee ballots in person as the 3-judge panel noted in its order yesterday. Order on motion for summary judgment, Feb. 10, 2009 (citing Minn. R. 8210.2200, subp.2).

Coleman and Franken disagree about admissibility of testimony

Feb. 10 - Franken has filed a motion to exclude testimony of one of Coleman’s proposed experts.  Coleman wants the witness to testify about statistical analyses of the variation among counties in absentee ballot rejection rates.  He says that the testimony will show that the variation in rejection rates is not the result of pure chance and will be important to the equal protection issues in the case.  The court may or may not have disposed of the Bush v. Gore style equal protection issue in an order last week, so it remains to be seen whether they will admit evidence on this issue.  Franken’s motion in limine to exclude the testimony is here. Coleman’s memo in opposition is here.

MN Contest Court: Count 23 More Absentees

Feb. 10 - The Minnesota election contest court ruled today that officials must count 23 out of 61 absentee ballots they had previously rejected for various technical defects.  The court also ruled that the paperwork accompanying a 24th absentee ballot should be examined to determine whether to count it.  Finally, the court ruled that it has not yet seen enough evidence to determine the disposition of the remaining 37 ballots. These voters originally filed their own contest suit, Peterson v. Ritchie, but that suit was joined to Coleman v. Franken on January 16.  Coleman voters attempted to intervene in Coleman v. Franken as well but the motion was denied by the court because they had not met the deadline for filing contests which is seven days after the state canvass completion.  See the Star Tribune story here.

MN Recount: Slow News Day

Feb. 6 - Nothing new has occurred today in the Franken/Coleman contest for Senate, although Coleman attorneys examined Anoka County elections manager Rachel Smith this morning regarding various irregularities in rejected absentee ballots.  Franken has not yet had a chance to cross-examine her.  Also, it appears that Smith found "a dozen or more" uncounted ballots cast in her county, inclusive of the three overseas/military ballots previously reported.  Apparently the overseas/military ballots were cast for Coleman, but it is unknown for whom the rest of the ballots were cast.

Coleman and Franken attorneys argue before MN Supreme Court over election certificate

Feb. 5 - hearing in Franken v. Pawlenty interrupted the Coleman v. Franken contest for an hour this morning. Franken's attorney argued that, even though the Senate may seat whoever they want whenever they want, the Minnesota Supreme Court should order the issuance of an election certificate. He argued that the statute governing the issuance of a certificate, 204C.40 subd. 2, is “fundamentally ambiguous” and should be interpreted so as to avoid a constitutional question. He also pointed out that a rule that doesn’t allow for the issuance of election certificates until contests brought by candidates or voters are completed and have gone through the appeal process could result in seats going unfilled for very long periods of time. Coleman and Minnesota's Solicitor General argued in favor of waiting until the election contest is complete before an election certificate may be issued saying that the statute clearly requires this and that federal law establishes no deadline for the states to issue election certificates. It is not yet known when the Court will rule on this matter.  See the Star Tribune coverage here

Day 9 of Minnesota election contest trial ends

Feb. 5 - At the end of Day 9, Anoka County Elections Director, Rachel Smith, revealed that she and her staff yesterday found three original UOCAVA military ballots that had been remade on election night. On election night, the duplicates of these ballots were counted. In the recount, only originals were counted at the insistence of the campaigns. Therefore, because these three original ballots were not found until yesterday, they were not counted in the recount and three votes had to be deducted from the vote totals. The ballots were stored apparently in an unconventional way with the application materials in front of them. In light of yesterday’s ruling establishing the universe of ballots for which evidence may be entered, it will be interesting to see if evidence will be admitted by the panel for these three newly found ballots. 

New comment by Edward Foley on yesterday's two Minnesota contest rulings

Feb. 4 - If you want to get up to speed on the Minnesota election contest, read this piece by EL@M Director Edward Foley which analyzes the two unanimous rulings of the contest court and what they may mean taken together.  At issue is whether or not Coleman's Bush v. Gore claim is still relevant in these proceedings or will be able to be heard in a future federal court case, if the contest continues beyond this court.  Washington County Elections Director Kevin Corbid is still in on the stand today and is currently undergoing cross-examination by the Franken campaign.  During direct examination this morning, Judge Reilly said explicitly that she and the panel plan to see that legally cast and wrongfully rejected ballots get opened and counted.  See the latest from The Star Tribune here

Hearing tomorrow in Franken's case seeking election certificate

Feb. 4 - Oral argument will take place before the Minnesota Supreme Court at 9 a.m. CT tomorrow in Franken v. Pawlenty.  A bill is being introduced by a Minnesota state senator to allow provisional election certificates to be issued in situations like this but it may not be passed before the contest ends, let alone signed into law by Governor Pawlenty. 

MN election contest – 933 absentee ballots already counted need not be revisited

Feb. 3 - The parties in the Coleman/Franken election contest have stipulated to the validity of the 933 absentee ballots that had originally been rejected but were accepted and counted after the Minnesota Supreme Court ordered local officials to review rejected absentee ballots again. The counties and cities decided to accept another 1300+ ballots after that second review but the candidates did not consent to counting about 400 of them.  See the stipulation order here.  Last week, Coleman also dismissed his claims regarding the Maplewood Precinct 6 “found” ballots and the St. Paul Ward 3, Precinct 9 “excess” ballots. Coleman’s team found that the handling of these ballots that were accidentally not counted on election night did not break any chain of custody rules. See that dismissal order here.

MN contest court rules on Franken’s motion in limine at the end of Day 7

Feb. 3 - style="margin: 0in 0in 0pt;" class="MsoNormal">The court ruled today on Franken’s motion in limine denying it in part and granting it in part.  The motion had sought to limit consideration of rejected absentee ballots to the 650 ballots that Coleman specifically mentioned in his notice of contest.  The Coleman campaign, on the other hand, wanted to possibly revisit all 11,000+ rejected absentee ballots.  See Coleman’s opposition to the motion here.  The court limited the pool of ballots that might be reconsidered to just under 4,800 ballots including: 1) those absentee ballots that Coleman’s side claims comply with 203B.12 subd. 2 and 2) those absentee ballots that may not comply with 203B.12 subd. 2 but whose non-compliance, Coleman claims, was not the fault of the voter.  This second group probably includes those absentee ballots cast in person by the voter and then rejected because of the election workers error in, for example, not requiring the voter to complete a ballot application.  It also likely includes absentee ballots whose envelopes have official stickers on them that obscure or partially obscure instructions to the voter.  The order seems to concentrate on Minnesota law’s statutory requirements for accepting and rejecting an absentee ballot without appearing to leave room for a constitutional equal protection argument.  Check back for more analysis on this point soon.  See the order here and the Star Tribune coverage here. 

 

Court Denies Coleman's Motion for Summary Judgment

Feb. 3 - The "tripartisan" 3-judge court, in denying Coleman's motion for summary judgment, unanimously ruled that there are disputed factual issues that must go to trial, saying Coleman will be permitted to present evidence that up to 4800 absentee ballots were wrongly rejected under state law.  But the court speaks dismissively of Coleman's Bush v. Gore claim: "Unlike the situation presented in Florida in Bush v. Gore, the Minnesota Legislature has enacted a standard clearly and unambiguously enumerating the grounds upon which an absentee ballot may be accepted or rejected. . . . The objective standards imposed on absentee ballots by Minn. Stat. 203B.12 distinguishes the election systems of Minnesota and Florida."  This language needs to be considered in relationship of the Court's earlier ruling today that precluded any consideration of Coleman's claims regarding roughly 7000 additional absentee ballots.  (All publicly available documents in the case are collected here).

Day 6 of Minnesota election contest trial complete

Feb. 2 - Today was Day 6 of the Minnesota election contest trial. Ramsey County Elections Director Joe Mansky was on the stand most of the day. He was questioned by Franken’s attorney about the practices in his county of reviewing the absentee ballot acceptance/rejection process. After last week’s trial proceedings, the Coleman campaign pointed out that Mansky said the election judges had 15 seconds to look at the ballot envelopes. Mansky clarified today that he hand-picked two election judges from his staff to review the rejected absentee ballots for mistakes, that they took as much time as they needed to review them in accordance with the court order, and that he was very confident that they had corrected any errors in his county. Coleman also called two voters at the end of the day whose ballots had not been counted. One voter apparently forgot to sign her absentee ballot envelope and the other voter’s ballot appears to have been rejected because there was no ballot application with his signature on it to be compared to his ballot even though he voted absentee in person at an elections office and his ballot was witnessed by an elections employee. See the latest Star Tribune story here and MPR story here. Mr. Mansky educated trial watchers today about Minnesota’s law requiring counties with absentee ballot boards to give voters another chance to vote absentee if they return their ballot before 5 days before the election and made a technical error on the envelope. However, not all counties and cities have absentee ballot boards and those that do have them may not convene them until less than 5 days preceding the election. This explains why many voters were not notified of the rejection of their absentee ballots while there was still a chance to correct any mistakes.

Commentary

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.

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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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