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Election Law @ Moritz

Election Law @ Moritz

Information & Analysis

April, 2009

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

Coleman Files Brief in Minnesota Recount Case

Apr. 30 - The first brief has been filed today (4/30) by the appellants with the Minnesota Supreme Court.

Tedisco Concedes in NY 20

Apr. 27 - Republican Jim Tedisco on Friday (4/24) conceded the closely contested New York congressional election to Democrat Scott Murphy.  The concession marks the end of the contest that began in late January, when Kirsten Gillibrand vacated the seat to become New York's junior senator. 

Minnesota Recount - Order Setting Date for Arguments

Apr. 24 - The Minnesota Supreme Court has entered an Order (4/24) establishing a schedule for briefs and has set a date of Monday, June 1 to hear arguments on the election dispute.

Appeal Filed in Minnesota Recount

Apr. 21 - As expected, Norm Coleman yesterday (4/20) appealed [Notice of Appeal] the trial court decision declaring  Al Franken the winner of the contentious Minnesota Senate Election (See EL@M case page for additional court documents). 

NY-20 update - Tedisco challenges Gillibrand's ballot

Apr. 16 - Candidate Jim Tedisco has challenged the ballot of Senator Kirsten Gillibrand who used to hold the seat he now seeks in Congress. Challengers allege that she was in the county on election day and should have voted in person. Senator Gillibrand says she was not in the county and that Tedisco is targeting Democratic voters unfairly. A judge is expected to rule soon on the counting of some challenged ballots and the possibility of extending the deadline for military and overseas ballots.  Murphy currently leads by 86 votes.  See today’s Saratogian coverage here. New York law allows persons who will be out of the county on election day to vote by absentee ballot. 8-400. The voter must sign a statement on the ballot application affirming that he or she “expects in good faith” to fall into one of the categories of voters who may vote absentee. Challengers may challenge voters on the grounds that they were not entitled to cast an absentee ballot. 8-506. 

Voting both by absentee ballot and in person on election day is controversial. During the 2008 presidential primaries, a New Jersey county court ruled that voters who cast their ballots before some candidates pulled out of the presidential race could get a replacement absentee ballot. In Minnesota, voters who cast an absentee ballot may vote in person without penalty; their absentee ballot is then not to be counted because poll workers should see that the voter signed the poll roster and voted in person before opening the voter’s absentee ballot. The practice is not necessarily encouraged but it is permitted. Some argue that actively allowing a second ballot to be issued to a voter unfairly gives that voter two chances to vote even if only one ballot is ultimately counted. In New York, when two absentee ballots are received from one voter, the one that is dated earlier in time is opened and counted. 8-506. This may imply a preference in New York election law for counting a voter’s first set of choices rather than giving the voter a second chance to make his or her voting decisions. 

Minnesota contest - possible next steps

Apr. 14 - Eric Black of MinnPost.com has a nice summary and analysis of what may happen with respect to issuance of a certificate of election in Minnesota's U.S. Senate race.  Until recently, Governor Tim Pawlenty has been saying that, after the Minnesota Supreme Court hears and decides an appeal, a federal court might stay issuance of a certificate if possible federal appeals are pending.  Yesterday, however, the governor implied that he himself might have some discretion in withholding the certificate if he thinks there are issues outstanding that would make a delay prudent.  Attorney Ben Ginsburg said today that Coleman's appeal of the contest court's decision will likely be filed next week.  See Jay Weiner's MinnPost.com piece here.

NY-20 congressional race - vote-counting continues as do court battles

Apr. 14 - Votes are still being counted in the NY-20 congressional race that took place roughly two weeks ago.  Yesterday was the deadline for arrival of military and overseas ballots.  Candidate Tedisco wants this deadline to be extended and Candidate Murphy has said he would be amenable to extending it as well.  However, the judge who was to preside over a hearing on the matter yesterday fell ill and was hospitalized.  He is expected to hear the matter as early as tomorrow.  See local coverage here.  The judge will likely also hear arguments over whether challenged ballots may be counted immediately when county elections commissioners from both parties agree that they should be opened and counted.  Tedisco's challengers in Columbia County have so far insisted that the challenged ballots be held aside until a judge can rule on them.  See the Times Union coverage here.  Democratic candidate Scott Murphy is currently ahead by 56 votes according to the New York State Board of Elections website.

3-Judge Court Issues Final Ruling for Franken

Apr. 13 - See the order here.  The final vote total has Franken ahead by 312 votes.  As to the 132 missing ballots, the court found that there was no evidence of fraud and no evidence that the election night numbers from the voting machines were unreliable.  As to the allegations of double-counting, the court concluded that Coleman is barred from asserting that recount Rule 9 (providing for the counting of original rather than duplicate ballots during the recount) violates Minnesota law by the doctrines of laches and judicial estoppel.  Finally, the court concluded that Coleman's claim that the counting process in this election violated equal protection of the laws as guaranteed by the U.S and Minnestoa constitutions fails on the merits.  Specifically, the court mentioned that Minnesota law does not provide for the remedy of opening ballots that do not meet the strict statutory requirements simply because others like them were opened and counted.  See the Star Tribune coverage here.  The Pioneer Press also has an excellent piece here and a timeline of recount and contest events here.

Vote-counting today in Minnesota contest courtroom

Apr. 7 - Election officials are currently opening absentee ballots in the Minnesota contest courtroom. After the ballot envelopes are opened and the secrecy envelopes removed and separated from their identifying information, the secrecy envelopes will be opened and Minnesota Elections Director Gary Poser will read out the votes for the U.S. Senate race. Coleman has already indicated that he will appeal to the Minnesota Supreme Court if Franken remains ahead after this morning’s count. Minnesota Governor Tim Pawlenty said yesterday that he expects this process to take “a few more months”. See the Pioneer Press coverage here.

MN: Additional Absentees Extend Franken's Lead

Apr. 7 - The Minnesota election contest court today observed the opening and counting of 351 absentee ballots that had not previously been counted.  See the Pioneer Press coverage here.  In the count, Coleman obtained 111 additional votes but Franken obtained an additional 198, putting him ahead by 312 votes for the time being.  Coleman is expected to appeal to the Minnesota Supreme Court once the final judgment of the contest court is issued.

NY-20 congressional race: absentee ballots to be counted tomorrow

Apr. 7 - The Supreme Court of New York in Dutchess County has ordered the counting of absentee ballots in the NY-20 congressional race to begin Wednesday, April 8. The state Republican Party had argued that absentee ballots should be counted with military and overseas ballots which have until next Monday to arrive under a consent decree entered with the federal government. The court found that the order does not apply to regular absentee ballots and that the ballots should be counted immediately rather than remaining in storage until Monday. See our case page here.  The New York State Board of Elections has Tedisco leading by 97 votes but a recent report from someone who has spoken to county officials has Murphy leading by 83 votes.  See the Politico coverage hereUPDATE (4/8): The absentee ballot count is under way

Minnesota U.S. Senate contest - Summarizing video

Apr. 6 - The Minnesota contest court will review 400 absentee ballots tomorrow and is expected to add most of them to the vote totals of Norm Coleman and Al Franken.  The court has not yet dealt with the allegations by Coleman of double-counting, missing ballots, and equal protection violations.  Whether the will be ready to dispose of those issues tomorrow remains to be seen.  The Star Tribune website is hosting a video created by TheUptake.org that summarizes the contest thus far.  See the video here.

NY-20 congressional race tied for now

Apr. 6 - 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. In a hearing held today over when to count absentee ballots, Murphy argued that the ballots should be counted 8 days after the election as spelled out in New York election law while the state Republican party argued that absentees and all paper ballots should be counted at the same time as military and overseas ballots which have until April 13 to arrive according to an earlier federal court order. See the Poughkeepsie Journal story here.  See the case page for In re Mondello here which was filed by the state Republican party before the polls closed on the day of the special election. The Supreme Court of New York in Dutchess County, on March 31, ordered the absentee ballots to be held uncounted pending its decision.

New York special congressional election candidates separated by 65 votes

Apr. 1 - A special election was held yesterday in upstate New York to replace former Congresswoman Kirsten Gillibrand after her appointment to Secretary of State Clinton's former U.S. Senate seat.  Candidate Scott Murphy currently leads candidate James Tedisco by 65 votes.  Thousands of absentee ballots have not yet been counted.  See the New York Times story here and Edward Foley's commentary on the race here.

Minnesota Senate race - analyses and comments

Apr. 1 - Yesterday, the Minnesota contest court said it would review 400 additional absentee ballots that had previously been rejected. It will count valid votes from that pool next Tuesday and, hopefully soon after, dispose of the remaining issues in the case and declare who received the most votes. See the case page here.  The losing party is expected to appeal to the Minnesota Supreme Court. The filing of a parallel suit in federal court is also a possibility. A certificate will probably not be issued until at least the Minnesota Supreme court decides an appeal, but that too is in question. Governor Pawlenty has said he will not issue a certificate until the law requires him to. 

Election Law @ Moritz and friends of our program have commented on issues from the case over the last months. Here are some links to our analyses and other important articles:

Equal Protection – Procedural and Substantive Matters – Edward B. Foley discusses the court’s first mention of Equal Protection and Bush v. Gore in this comment from Feb. 4, 2009.

Equal Protection, Substantial Compliance – Edward B. Foley discusses the tension between three of Coleman’s arguments: 1) the pure Equal Protection argument, 2) the Equal Protection as a gloss on Minnesota law argument, and 3) the substantial compliance argument in this Feb. 12, 2009 piece.

Equal Protection – Mistakes vs. Different Policies – Edward B. Foley discusses the difference between random mistakes in applying a uniform set of standards and the possible existence of non-uniform local policies interpreting such standards in this Feb. 19. 2009 piece. 

Equal Protection, Bush v. Gore – Rick Hasen wrote this Mar. 18, 2009 piece for Slate.com suggesting the courts might be hesitant to find an equal protection violation under these circumstances, because such a conclusion would essentially require state instead of local administration of elections to ensure uniformity.

Uncounting Commingled Votes – Sarah Cherry discusses Minnesota law and case precedent on what to do when invalid ballots have been irretrievably commingled with valid ones in this Mar. 2, 2009 comment. 

Challenging the Validity of Absentee Ballots – Sarah Cherry discusses Minnesota Supreme Court case Bell v. Gannaway and the law in Minnesota of challenging absentee ballots in this Mar.11, 2009 piece. 

Reluctance to Void ElectionsNathan Cemenska writes in this Mar. 17, 2009 piece about why courts are reluctant to void elections and order a re-vote in most cases. 

Coin-flip to Determine Result – Nathan Cemenska writes about why flipping a coin when candidate totals are very close will not necessarily reduce the delayed results and litigation that come with a close election in this Feb. 25, 2009 piece. 


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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