Coleman's Last Hope Rests In Dubious Legal Maneuvers

After a day of legal wrangling, Al Franken's Senate campaign is confident the comedian will end the "reconciliation" process of the recount up roughly 50 votes over Minnesota Sen. Norm Coleman.

Marc Elias, the Democratic challenger's lead recount attorney, predicted that the final margin would be 47 votes. This tally, however, is hardly set in stone. On Tuesday, lawyers for Sen. Norm Coleman argued before the State Supreme Court that 138 or so ballots had been accidentally counted twice during the recount process. As such, they argued, the state should go back to 25 specific precincts and use the Election Day tallies. Such a maneuver engendered sharp questions from Supreme Court officials and Franken's own legal team.

Why, for example, should the state focus only on 25 precincts, where it just so happens a reversion to Election night totals would favor Coleman? (If the 138 ballots were counted Coleman would gain an estimated 126 votes -- catapulting him into the lead).

"All 4,001 precincts would have to be re-canvassed," said Franken lawyer William Pentelovitch. "They've cherry-picked what they want to look at."

And what specific evidence did the Coleman campaign have to claim that 130 or so ballots had been double counted?

On Election Day, some voters had to use a second ballot after their first could not be properly scanned through machines. But the duplicates did not appear to be counted alongside the originals, as the Coleman team has argued, because the total number of votes from Election Day line up with the total number of votes after the recount.

Elias, speaking briefly to reporters, said the issue of what to do about the alleged duplicates should be resolved on December 30th. Though if the court rules that the state had to re-look at whether or not duplicates where counted, the Franken team could respond by challenging votes of its own.

Once that topic is settled, there will be only one more obstacle to resolution of the race. The two campaigns and state officials have not, as of yet, determined the best course of action for 1,600 or so improperly rejected absentee ballots. This pool seems likely to favor Franken, should it be counted, and could make any argument over duplicates moot. Resolution on that front, however, could extend weeks into January.

Comments

[TJCole]

How about a game of rock, paper ,scissors...?

Two out of three perhaps, or three out of five..?

[Michale32086]

Too many variables..

Just flip a coin....

Michale.....

[TJCole]

LOL..!

[Barbyrah]

Don't know if this link'll come through, but the brief Franken filed for yesterday's court hearing re: duplicate ballots...is pretty readable, pretty short, and may explain better than I can:

http://www.alfranken.com/page/-/docs/recount/20081218_DuplicateBrief2.pdf

Bottom line: Coleman fought to have original ballots WITHOUT corresponding duplicates counted...when they were votes for himself (not conjecture; his lawyer's emails, on the public record, show this clearly). Yesterday, that same lawyer was attempting to get originals without corresponding duplicates thrown out...in precincts that leaned for Franken...while suggesting that no other precincts needed to be re-evaluated!

(IF the link doesn't work, go to Al Franken's website; the link is there, along with another link to the addendum filed with the brief that shows the trail of emails...)

[Michale32086]

@TheWombat

}}}}}
There is a big difference. Dems do not engage in such activity across the board, Blagojevich is an isolated (and apparently loathed) example of corruption amongst the Democratic ranks.
{{{{{

Yer kidding, right???

http://en.wikipedia.org/wiki/Political_scandals_of_the_United_States

There are as many D-s there as there are R-s...

"Isolated example" my left arse cheek....

Michale.....

[TheWombat]

Well I guess I'm looking at the RNC vs DNC in recent years. Of course there's corruption across the board, the difference is the party hasn't supported the Democrats, but the Repubs have supported Bush/Cheney through all their misdeeds, rallied around kiddy fiddlers like Mark Foley, men caught red-handed like Tom Delay etc.
The Repubs are shape-shifting and indignant, the Dems are timid and forever apologetic.

[Curlew]

This is becoming beyond ridiculous. You'd think that a country that could put people on the moon would be capable of standardizing the voting process so this foolishness would never occur. Yes, I know, I'm a dreamer.

[Barbyrah]

Curlew, a loving FYI: The process WAS standardized. The process, then, wasn't the problem. No, the problem was with how the process WAS FOLLOWED by those who were supposed to do so: election precinct workers and judges.
I can tell: These people didn't make mistakes on purpose. But if you've got a glut of voters streaming in all at one time...well, processes can get overlooked in the rush - can remain unfinished, for example, or just sorted/marked incorrectly.
I also read in the email trail among the lawyers of the candidates and the sec of state's office...that there was even a county attorney who was refusing to follow the process (by claiming the backs of ballots should not be looked at nor used to determine validity, even though things like identifying marks - which invalidate the ballot - were being found on the backsides of some ballots.)
Which says, bottom line: Whenever people are involved, errors are involved. And sometimes partisan politics, too (like that county attorney). So it's not that the process didn't work.
(And in case you're thinking: How about if we go the electronic route? That'll eliminate the human factor - just look at what's happening in Ohio with the voter fraud suit involving electronic machines. Those "errors" are even more insidious, because they're hidden, much harder to prove. Yet after how many years it's finally coming out...that those in charge of tabulating via electronic technology...were paid affiliates of the Repubs, esp. Rove.)

[Archontruth]

A lot of the contested ballots have been scanned and appear online in various places. Looking at some of them would be educational for you.

The problem isn't Minnesota's voting system, it's morons who can't fill in a bubble on an optical scan ballot. It's kind of scary to think there are people who can't operate a pencil driving to the polls in motor vehicles.

There are always going to be problems like this in close races (which this was) because genius has its limits, but stupidity knows no bounds.

[mitsie]

Ahh those bubbles and chads LOL

[mitsie]

Exactly, and it starts with the Primary season, why can't all the states have the same process? Let the voters decide and on electronic machines. We have electronic in NJ and it shows before you hit the submit button exactly who you voted for. If you made an error, it allows one to go back and correct the vote. I think Federal elections are especially important to have standardized voting and ballots. There is no need in this day and age for paper ballots.

[ElPerro]

Norm Coleman is going to prison while Al Franken is going to the Senate. Is this a great country or what?

[Michale32086]

What color is the sky in your world?? Kinda rosy with a touch of lavender??

Michale....

[thatsitfortheother1]

You also write like a girl.

[Gifts]

Dubious, anyone with any ethics would call for a re election, this recount is such fraud! Both parties are LOSERS. Bring it back to the people, and put a limit on time to count the ballots. This is worse that a third world country. It reflects very poorly on the Americas who obviously get blamed for everything.

[LeftRight]

You're right, it shows that America needs to improve our ability to accurately count the votes on election day, BUT a new election is not within the laws, whereas a recount is! Not to mention the fact that you should ONLY call for a new election in cases where a runoff is reasonable, such as when you have three viable candidates and no one wins a clear majority!

[Michale32086]

@LeftRight

}}}}}
How is that not relevant? The man is under investigation for his ethics, it MATTERS!!!!
{{{{{

Not in the recount it doesn't.. It mattered during the election. It was relevant then.

It's completely irrelevant now...

Or, are you saying that the recount should favor Franken, solely because of ethics accusations???

The recount should be based on one thing and one thing only. The rule of law...

By the bi.. Good ta see ya again.. Thought ya went out and got a life!! :D

Michale.....

[LeftRight]

It still matters! The man's ethics will ALWAYS matter, ESPECIALLY while he is a sitting US Senator!

As for the courts considering his ethics while they determine whether to count the challenged ballots or not.... You're right in that SINGLE case, his personal ethics are unimportant. However, since this is not a court of law in the great state of Minnesota...... I would say that it's DEFINITELY valid to bring up his ethics investigation. Just like it's valid to bring up Sarah's ethics, and John's ethics, and George's ethics!

[Michale32086]

I am simply saying that when it comes to a RECOUNT, the ONLY thing that matters is the law..

The time to bring up ethics issues or what have you, is during the election. It doesn't matter if Coleman is a dyed in the wool terrorist who slurps lattes with Bin Laden.

If he makes it to the recount, the ONLY issue of relevance is the rule of law...

Michale.....

[LeftRight]

And as for the getting a life part, nah, I've just been overworked lately, so when I'm not doing anything, I'm sleeping....

[Michale32086]

Whew! I didn't want to be the only one without a life.. :D

Michale.....

[me again]

Beware the giant fake choppers of election doom.........

[CR46]

Theres one dentist (Norms) who should lose his license to practice!

[Michale32086]

@CR46

}}}}}
Not in the basic recount, but personal ethics should be brought into it when he is trying to block votes of citizens from being counted!!
{{{{{

Personal ethics are for the campaign.

The recount should be based on NOTHING but established law and procedures..

Period..

Michale.....

[LeftRight]

Personal ethics are a factor in ALL of it. On the other hand, you are correct about the fact that the recount should be based on law. Which means, of course, that you need to count every vote, and not throw some out for spurious reasons like Coleman has been trying!

[CR46]

No he is currently a US senator, personal ethics always matter. And it is not ethical to use campaign funds for personal attorneys, not the ones involved in the recount but in the FBI investigation. So like a republican to say ethics don't matter. And yes it should go by Minnesota election and recount laws, so why is Norm trying to block that.

[thatsitfortheother1]

You spell your name like a girl.

[LeftRight]

First, no he doesn't. Second, what does that have to do with ANYTHING????

[Michale32086]

Yea, well yer mommy dresses you funny.... :D

Michale.....

[jake106]

Its funny how you didn't label Franken's maneuvers as "dubious legal maneuver's" throughout this whole ordeal. His legal wrangling was, of course, justified and proper. Because, you know, Franken is such an upstanding wonderful person and everything he does is correct. And Coleman, being a Republican, is obviously a crook, just for existing.

Some objectivity around here would be interesting, but obviously too much to ask.

[darthmaul]

Here is an objective fact:

Norm Coleman is a principle in an FBI investigation.

Al Franken is not a principle in an FBI investigation

[Michale32086]

While your fact may be objective, you bringing it up is not.

Further, your "fact" is not relevant to the recount process...

Michale.....

[Barbyrah]

P.S. As for what's happening with the improperly rejected absentee ballots, here's the latest, courtesy of Minn Public Radio "Under the [proposed] process, counties would be required to submit unopened wrongly-rejected absentee ballots to Ritchie's office by Jan. 2. The Secretary of State's office would then open and count the ballots by Jan. 4. Finally, both campaigns would have an opportunity to challenge ballot decisions before the State Canvassing Board."
Definition of proposed process: Both campaigns, the MN Sec of State, and local election board judges have to agree on how to go about deterimining whether or not a ballot was wrongfully excluded from being counted. This process was decreed by the MN State Supreme Court last week; it appears such an agreement has been tentatively reached by all parties required to do so.

[Michale32086]

Thanx for a great explanation as to exactly what's going on..

Much appreciated..

Michale.....

[OhComeOnNow]

Thank you for taking the time to provide this level of detail (typing this as I'm listening to MPR about this topic no less). You've been fan -ed by me.

[Barbyrah]

Addtional comment re: duplicate ballot challenge: Franken's lawyer argued, that if the Court allows these ballots to be thrown out due to their potential for being counted twice, each and every other precinct/county's tallies will have to be redone as well because there were other instances of this same problem...in other words, the equal protection thing would come into play: All ballots need to be treated the same way.
FYI: Franken's team attempted to challenge these same types of ballots in other geographic locations for the same reason, but there was an inconsistent standard applied as they were told by local election judges that such was not a valid reason to challenge, since the agreement, made by all parties beforehand, stated: We will count only originals, not duplicates. Meaning, as long as there was an original ballot, it didn't matter if no duplicate was found. (Very important for Canvassing Board to have the original in hand, since disqualifying criteria many times hinged on how the entire ballot looked, whether there were identifying marks present, for example.) Which is probably why all parties agreed to this rule.
As Franken's lawyer argued: These were the rules we all agreed to prior to the recount. And when we attempted to challenge some ballots for the same reason Coleman is now doing, we were refused. And we accepted that refusal, as did the Coleman folk. (In fact, Coleman's campaign even wrote a letter to Franken's people restating the rule.)

[nick1936]

hOW ABOUT FOLLOWING THE LAW AND SEND THE PROBLEM WHERE IT BELONGS TO THE nEW SENATE

[CR46]

They are following Minnesota election laws.

[Barbyrah]

I realize the duplicate ballot thing is a complicated issue, I'm from MN and have been following closely. Here's my take: :
1. There were some absentee ballots as well as ballots from people living overseas that could not be read by the scanner (too many folds on the ballot; ballot form printed from an online template using lighter weight paper);
2. When these ballots didn't "register," election workers were supposed to transpose the votes from the unscannable ballot to another new ballot, then scanned in;
3. Those duplicates were supposed to be marked "Duplicate" at the top of the form and kept separate from the original;
4. Originals were also supposed to be marked "Original" at the top and put in the pile of scanned ballots.
The (supposed) problem? "Orignals" were found in the pile of scanned ballots - but some didn't have corresponding "Duplicates" in the "Duplicate" pile. Therefore, Coleman's team is suggesting those "Orignals" that didn't have corresponding "Duplicates"... ended up getting counted twice because BOTH the original AND the duplicates that were not marked "Duplicate" were put through the scanner (because the duplicates, by being left unmarked, were assumed to be originals. (Whew!)
This doesn't make sense for a lot of reasons....but...IF the Court agrees with Coleman, then those "Original" ballots with no corresponding "Duplicate"...will be THROWN OUT. And that will translate into lost votes for Franken, since many more of these ballots were Franken votes. Translate: Coleman will take the lead.

:

[anandakos]

Barbyrah,

Thank you for this cogent description of the situation. It seems to me that the simple answer to this controversy is "does the total number of votes recorded in the recount as being validly cast for one of the candidates PLUS the number of votes rejected for any valid reason (count A) equal the number of signatures in the election register PLUS the number of accepted absentee votes received for that precinct (count B)"? It's simple double entry bookkeeping and is a subsidiary reason voters have to sign in to the precinct (the main one is obviously the prevention of double voting).

In any precinct wherein count A exceeds count B and there are such "Original without corresponding Duplicate" ballots it does seem likely that the error described may have occurred. I gather that is the reason that Senator Coleman's attorneys have specified only 130 precincts.

One would hope that buried in Minnesota's obviously thorough voting statues is some process by which to resolve such a situation prescribed. If not, there is a real problem which can only be solved by the Minnesota Supreme Court.

Referring back to your earlier post, if there are such situations they clearly should be handled in the same way throughout the state.

[deke4]

I find the quote I so often read after Bush was selected not to throw it right back at those people who selected in 2000 and elected? in 2004. The question mark is there because the Ohio issue may come up ans bite them in the butt. If the Bush computer whiz who recently loss his life in a plane crash left data that yet may be found we could use the term selected and selected again. I digress, the quote I wish to utter to the Right is "get over it" You already have caused this nation what may become irrepairable harm with that possible 2 term selectee.