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Election Law @ Moritz

Election Law @ Moritz

Information & Analysis

March, 2009

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

New orders in the Minnesota U.S. Senate contest

Mar. 31 - The court has issued two orders this afternoon stating that it will review and consider for counting 400 previously rejected absentee ballots and granting summary judgment in part for more of the Nauen voters.  See the orders here and here on our Coleman v. Franken case page.  The ballots will be delivered to the Secretary of State and counted on April 7, 2009 in the Minnesota Supreme Court room where the trial took place.  The order does not rule on issues of alleged double-counting, lost ballots, or equal protection violations.  Franken's attorney, Marc Elias, says he expects those issues to be dealt with in a future order.  See the Star Tribune coverage here

No news yet in the Minnesota Senate contest

Mar. 20 - The contest court has not issued any orders yet this week in the Coleman v. Franken contest.  Last Friday, the contest court heard closing arguments in the case. This week the parties submitted their findings of fact and conclusions of law documents. Franken is asking the court to consider 430 rejected absentee ballots. He introduced complete evidence for 252 of these. Coleman seeks to have 1,369 rejected absentees counted by the court. See the Star Tribune coverage here. Yesterday, several reports revealed that Coleman attorney Joe Friedberg thinks the trial outcome will likely favor Franken but that an appeals court will have to decide the constitutional issues that Coleman’s team presented in their case. See the MinnPost.com coverage here. The Star Tribune also has a nice timeline of recount and contest events here.

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

Mar. 13 - 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.

Minnesota Senate contest - Franken to provisionally rest case tomorrow

Mar. 11 - Today in Coleman v. Franken, the contest court heard arguments from both sides about Franken’s motion to exclude evidence that Coleman has subpoenaed from county officials about 84 voters. Franken argued that Coleman has rested and that the new evidence is not appropriate for a rebuttal case. The court said it will rule on this motion soon. The court ordered today that 14 more of the Nauen voters’ ballots will be counted. In the order, the court said it could not grant or deny summary judgment as to the ballots of voters whose ballot envelopes provided only a partial address for themselves or their witnesses or ballots of those who moved within an apartment building or complex but did not re-register. The court has heard evidence about the law and practice for these issues but has not yet determined what exactly is required. The court says it will review these ballots individually at the appropriate time. (See p. 8 of the order.) Attorney Charles Nauen will be putting on the remainder of his case tomorrow followed by Coleman’s rebuttal.  Franken also may provisionally rest his case tomorrow.

What will happen to the 89 ballots whose envelopes contained valid registration forms?

Mar. 9 - Officials found that 89 secrecy envelopes for ballots that were initially rejected for registration reasons actually contained valid registration forms.  Deficient forms were found in 72 of the envelopes and no form at all was found in the remainder of the 1600 envelopes that were checked.  The 89 ballots will not automatically be counted because the court has not yet ruled on their validity.  The Feb. 26 order requiring the envelopes to be opened and checked for registrations said that the ballots should be sorted into the three categories described above and securely stored to facilitate transport to a central location for review, “if the Court should so order.”  The 89 ballots came from 20 counties, 14 of which leaned toward Coleman and 6 of which leaned Franken.  See the breakdown in this Star Tribune articleIn other news, attorney Charles Nauen withdrew the petition of several Franken voters in Shad v. Ritchie.  The notice of withdrawal is not yet available online but the court accepted it and dismissed the petition with prejudice.

Minnesota Senate contest - 80 registration forms found out of 1500 secrecy envelopes

Mar. 9 - The court ordered ballot secrecy envelopes opened for approximately 1500 absentee ballots to see if they contained properly completed registration forms that would permit the ballots to be counted.  Only 80 of these actually contained valid registration forms.  See the Star Tribune coverage here.  Eric Black at MinnPost.com has analysis of the Supreme Court’s decision here.  He cites experts in his conclusion that the Minnesota Supreme Court decision not to grant Franken a certificate now may help him get the certificate at the conclusion of the state court proceedings.  Minnesota’s governor said prior to the court’s decision that an appeal to the U.S. Supreme Court may require a delay in issuing the certificate.  Minnesota Public Radio has a piece on who pays the cost of the contest once it’s over.  One expert quoted says attorneys’ fees are not generally paid by the losing party in a contest but the contest court mentioned in one of its orders (here on p. 7) that attorneys’ fees might be included.

Minnesota Senate contest - Two Minn. Sup. Ct. decisions, Coleman's response to motion to dismiss, contest court motions hearing

Mar. 6 - A lot is happening today in the ongoing lawsuits over Minnesota's U.S. Senate race.  Coleman responded to Franken's motion to dismiss.  The Minnesota Supreme Court denied Franken's request that it order an election certificate be issued to him.  The court also issued an opinion supporting its decision back in December which required election officials and the campaigns to agree on which rejected absentee ballots should be included in the state canvass.  The court is now hearing arguments over Coleman's motion to invalidate Rule 9 from the recount and Franken's motion to dismiss.  More information will be posted in this space this afternoon. 

Minnesota contest court hears arguments over Franken's motion to dismiss

Mar. 6 - The contest court today heard arguments from Coleman and Franken over Coleman's motion to invalidate Rule 9 from the recount and Franken's motion to dismiss.  Fanken's attorney Marc Elias recited many of the details from the Franken motion in alleging that Coleman has not met its burden of submitting the evidence required for the court to find that rejected ballots were legally cast.  Coleman attorney James Langdon replied more generally by saying that he believed the Coleman team had shown by a preponderance of the evidence that Coleman's claims are valid.  Langdon mentioned that they await the court's decision on Coleman's motion to apply the Feb. 13 order to all absentee ballots.  The judges did not ask many questions but Judge Reilly did say that she thought the ballots had been looked at three times now suggesting that she might have reservations about accepting Langdon's argument that the counting standard was unequally applied such that an equal protection violation exists.  Judge Marben asked Langdon if he accepted the numbers put forth in Franken's motion, which says the remaining ballots at issue number only 1400+ and that, of those, Coleman has put forth the necessary pieces of evidence for only a very small number of ballots to be considered by the court for inclusion.  Langdon did not accept the Franken numbers and suggested there are about 1725 ballots still in the "universe" for consideration by this court. 

Minnesota Senate contest update

Mar. 5 - Franken’s legal team continued presenting its case today and, additionally, filed a motion to dismiss the Coleman v. Franken suit altogether arguing that Coleman has not proved his claims. The contest court has not yet ruled on Coleman’s motion to apply the Feb. 13 order to all 280,000+ absentee ballots. After last Friday’s hearing on the motion, Coleman attorney, James Langdon, submitted this letter to the court citing precedent from outside Minnesota for using proportionate deduction to remove invalid ballots from the count. The letter also cites out-of-state precedent for setting aside an election where a court determines it is impossible to know who received the most votes in an election. EL@M will be posting additional analysis in the coming days. See Minnpost.com’s coverage here and here and The Star Tribune’s coverage here. The court is holding a motions hearings tomorrow at 1:30 p.m. CT.

Un-counting votes in Minnesota’s U.S. Senate race

Mar. 2 - Question: Assuming that invalid absentee votes have been cast and counted in Minnesota’s U.S. Senate race without any way to retrieve them, what remedy does Minnesota law provide when the number of such invalid absentee ballots exceeds the margin of victory?


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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