Team Coleman tells court how to deal with ballot disparities
In its reply brief (1.2 MB PDF) — the last document to be filed before the MN Supremes hear arguments in the case — Norm Coleman's legal team has clarified exactly how it thinks the court should deal with the disparities that have occurred in the treatment of absentee ballots.
Specifically, Coleman urges, the court should remand the case to the Election Contest Court with orders that the ECC adopt five presumptions about the acceptability of ballots. These presumptions, the brief argues, were used by many counties on Election Day.
I'll spell out the five presumptions below. If adopted, these presumptions would lead to the acceptance of a large portion (no one can say at this point how many) of the 4,400 until-now-rejected absentee ballots (ABs) that Team Coleman has trying to get added to the count.
The five-presumptions-idea is really the latest, and perhaps most specific, version of the argument Team C has been making for months: Different counties brought different presumptions and different levels of scrutiny to task of accepting and rejecting ABs. If those disparities are allowed to stand, voters whose ballots had similar characteristics (for example, the voter's signature on the ballot doesn't look like his signature of the AB application) might have had their ballots counted in one jurisdiction and rejected in another).
Such disparities (this is the most familiar summary of the argument) violate the Equal Protection Clause of the 14th Amendment of the U.S. Constitution. As the reply brief argues:
"Officials in Minneapolis, Ramsey County and Washington County who did not check witness registration and those officials in Carver County who did cannot both have been correct."
Such disparities, the brief argues:
"Put the election's outcome in doubt and disenfranchise voters. They demand a remedy."
TheThreeJudges of the ECC ruled that Minnesota statutes provide clear standards for what constitutes an acceptable absentee ballot. The Coleman brief calls that "delusional." (Team Coleman has been ripping TheThree for months now.)
TheThree ruled that, for purposes of adding ballots to the count, it would apply those standards fairly strictly, and would count only those ballots that were proved, on an individual ballot-by-ballot basis, to meet all of the standards.
Team C has argued that this "strict compliance" standard is too high, but even if that is the right standard, it cannot be applied to the last batch of ballots under consideration because many absentee ballots that were already counted, and cannot be uncounted, were judged by a lower standard that Coleman calls "substantial compliance."
Counties that applied a "substantial compliance" standard tended to rely on presumptions that saved them the effort of checking everything about a ballot, Coleman argues. Such presumptions varied from county to county. In past briefs, Coleman has suggested that to reduce the amount of disparate treatment, the court should construct a set of presumptions based on an amalgam of the ones most commonly used. That leads to today's brief, in which Team C proposes a set of five presumptions, as follows:
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If an AB arrived at the county in an envelope that is used for registered voters, the court should assume the voter is registered. (This is probably the biggest one, which I'll discuss below.)
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If the witness to the absentee ballot gave a Minnesota address, she should be assumed to be a registered Minnesota voter. (This would presumably bring in 179 additional votes from Coleman-friendly Carver County, which is one of the few counties that checked to see whether witnesses were registered and disqualified ballots if the witness wasn't registered.)
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If the witness is described on the ballot as a notary, this should be presumed to be true, even if there is no notary stamp. (Notaries can be legal witnesses for AB purposes, even if they aren't registered MN voters. Some ballots were disqualified for lack of a notary stamp.)
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If a voter submitted an absentee ballot, it should be presumed that he also submitted an absentee ballot application. (The law requires that election officials examine the application. Some ballots were rejected because the applications couldn't be found. Coleman argues that if there had been no application, there would have been no ballot mailed to the voter.)
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If the absentee ballot bears a signature, the signature should be presumed genuine. (This relies on a long-standing Coleman argument that counties varied widely in their scrutiny of signatures, generally without benefit of handwriting expertise. Some counties rejected ballots if the signature on the ballot looked different from the one on the application. Some counties barely checked.)
I believe the big one is the first one because, through the back door, it helps Coleman solve a potential killer problem that I highlighted in my post this morning.
TheThreeJudges told the parties that they wanted ballot-by-ballot proof that each voter was qualified and had complied with the standards set in Minnesota law. One big, unwaivable standard is that the voter be registered to vote. In his press briefing this afternoon, Team Coleman's lawyer-spokester Ben Ginsberg affirmed that he is NOT seeking a standard so low that unregistered voters are allowed to vote. But if presumption No. 1 is adopted, then a significant number of ballots will be put back into play, even though Coleman failed to meet TheThreeJudges requirement that they prove registration afresh for each ballot.
(In a footnote to the new brief, Team Coleman wrote: "The trial court was incorrect in imposing the burden that parties to the contest must prove each element of a voter's eligibility, as opposed to proving just the reason for which local officials rejected an absentee ballot." If the ThreeJudges are right on requiring such proof, Coleman essentially can't gain enough votes to change the outcome. If presumption one is adopted, a lot more ballots -- I don't have a number -- will come into play.)
The merits of presumption one, on a fairness or legal basis, would be a whole separate argument and it has some reasonableness. Ginsberg said in the press call that Coleman did try to prove registration for ballots that were rejected in the first place for lack of registration. But if the Supreme Court holds Coleman to the evidence that is already in the trial court record, and if it backs up TheThree on their order that each element of acceptability be proven, Coleman is sunk.
I haven't fully analyzed the brief and will be back later with more summary and analysis.
More like this
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- Franken, Coleman: Looking ahead to today's last brief
- Senate recount appeal: Update of previous breathless look at the Coleman brief
- Update: Franken brief rips merits, quality of Coleman case
- Week five of Coleman-Franken trial: Has Coleman proved his case?
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Comments (13)
Eric
Thanks for your outstanding, continuing analysis. ``Equal protection'' might be putting it strongly, but we have to admit that if a ``Coleman county'' was more rigorous about checking and rejecting ballots than a ``Franken county,'' there is a certain unfairness to that if happened. (And vice versa, of course.) If I lost a major election knowing that was the cause, that would really STING. But one of my concerns -- and I'm just too removed to figure it out-- is whether Coleman is vote-shopping in retrospect, knowing voter tendencies. If he is, that would really STINK.
Number 4 strikes me as the strongest argument. It makes sense that if a ballot wouldn't be sent without an application being received, then the application must have been lost, and election worker error isn't supposed to result in rejection. Of course, this assumes there isn't some way to get a ballot without an application being received.
It also seems like Coleman is cherrypicking his varying practices. I recall during the trial a Coleman county (Anoka?) came up with a procedure to look in secrecy envelopes for registration cards, which they weren't supposed to do, whereas in Minneapolis these were rejected for lack of registration. This makes me question that varying mistakes hurt Coleman. They look like a wash, as far as I can tell, and I would think Coleman would have to prove harm.
It seems like you should note that the above presumptions have basically no basis in Minnesota election law, as noted by the ECC. Essentially the Coleman camp is asking the Minnesota Supreme Court to re-write election law from the bench. The Coleman camp's argument is literally, "I know what the law says, but if you follow the law then I lost, so you need to change the law." I forget - which party is it that hates "activist judges" that "legislate from the bench."
It seems to me that the five arguments are quite easily shredded.
1. If an AB arrived in an envelope for a registered voter, you can assume the voter is registered.
Reply: Or the person who sent in the ballot knew a registered voter who decided not to use the absentee ballot. Just because it arrived in an envelope sent to a registered voter, does not mean the vote was cast by the same person it was sent to.
2. If the witness has a Minnesota address...
Reply: Why should that assumption be made? It's reasonable to assume that the witness is eligible to register to vote, but equally reasonable to assume that they may not have registered.
3. If the person is described as a notary...
Reply: This one is pure B.S. an actual Notary would stamp, sign & date. I would assume the opposite. That if there is no stamp, it was erroneously signed by a non-notary.
4. If a voter submitted an absentee ballot, it should be assumed that they also submitted an application.
Reply: See reply #1. It may not have been the same person who applied and submitted. There is no reason to make this assumption.
5. If the signature...
Reply: OK. Barring handwriting analysis, if the signatures look reasonably similar, I'd assume they are the same. But there's no reason to assume that just because there are 2 signatures that have the same name, they are signed by the same person. Where it is obviously a different signature, there should be no presumption.
G'night Norm.
I can understand the argument based on "substantial compliance" when evaluating fresh, new ballots. It is essentially a "presumption of innocence" philosophy - and has a practical value if there is a scarcity of resources available on Election Day.
But for ballots already rejected for being non-compliant, how can that be ignored?
It's a case of what you don't know may or may not hurt you. But what you know to be factual cannot be dismissed so lightly
If a ballot were known conclusively to be non-compliant with Minnesota statutory requirements, it would seem to me that to allow the ballot to be counted would be an overt act that willfully violates the law.
I believe the remedy that is sought could result in violation of the separation of powers. If the remedy were enacted, the Minnesota Supreme Court would be disregarding the laws established by the legislature - and would instead be using laws of its own devising.
Because the only available source of ballots to count are those proven to be non-compliant with Minnesota statutory requirements. And election officials and the ECC have established this proof after meticulous review.
Through artful juxtaposition of noun and adverb Coleman implies that certain county election judges intended to treat selected absentee ballots differently than did their peers. Here's an example: "The disparate application at issue here-- local officials consciously applying the statutory standard differently--does not meet either prong" Reply Brief at 9.
But there was no evidence that local officials were in any way "conscious" that officials in other counties were making different calls. The election judges made decisions, yes, but not ones that were consciously or deliberately or intentionally or purposefully contrary to the decisions of election judges in other counties. One county had no idea what another county was doing, so far as the record shows, and they all reasonably believed they were complying with statutes, rules and training directives. There was no proof of any conspiracy among officials who had knowledge about how other counties were treating select situations. There are ample trial court findings that at worst mistakes applying the statute were the result of ignorance despite uniform training, inadvertence, lack of equal resources, and physical differences among counties.
This is Coleman's crucial act of misdirection because, absent proof of intention to treat ballots differently, Coleman has proved no Equal Protection claim at all. He's done done nothing to tie his allegation in to voter suppression, bias or animus. It is a proposed Constitutional principal which has no minimum threshold.
Re-read the brief skipping over the weasel words conscious and deliberate, and the Equal Protection argument just falls apart.
If the Court buys Coleman's argument that he does not have the burden of production and persuasion for every element of his claim that a rejected ballot should counted, it will be a sea change in Minnesota election law.
Why does Coleman keep blurring the Court's focus with his throw away "I didn't get an Inspection" claim? Once again, the Reply doesn't try to show any harm effecting the outcome given all the other discovery methods Colman did employ, while a "reversal" admits of no remedy at this point. Coleman spends half his brief trying to persuade a Court to rewrite an elaborate election statute, then demands strict compliance with a discovery law, claiming the Inspection statute admits of no judicial discretion. This is a shooting oneself in the foot argument.
( 1. If an AB arrived at the county in an envelope that is used for registered voters, the court should assume the voter is registered.)
This one I don't understand? This is the one element that is totally consistent across the state. The database is frozen. From that frozen database the register is printed. Each envelope is check against the register to see if another ballot has already been cast. If the name isn't on the roster it is checked for registration.
Now they could argue that those ballots submitted in person with an election official as a witness should be presumed to be registered. But how can they argue any more then that?
( 2.If the witness to the absentee ballot gave a Minnesota address, she should be assumed to be a registered Minnesota voter.)
Ok I can see this one. But it wont be 179 from Carver as she testified that many if not most were resubmitted. Carver was equally diligent in notifying voters of the rejections.
( 3. If the witness is described on the ballot as a notary, this should be presumed to be true, even if there is no notary stamp.)
As noted above the presumption should go the other way.
( 4. If a voter submitted an absentee ballot, it should be presumed that he also submitted an absentee ballot application.)
Some thousands of ballots sent out but note returned argues against this.
( 5. If the absentee ballot bears a signature, the signature should be presumed genuine.)
Some of Coleman's own witnesses testified that other people signed their Ballot or their application.
These five presumptions probably hurt the Coleman case significantly as it highlights just how weak it is.
Just a "brief" procedural note. In my practice as an appellate lawyer in the state of Illinois, it is not considered kosher to use your reply brief to present an argument which is not present in your original brief. In the Coleman reply brief, counsel belatedly presents a 5-part remedy of how to decide which of the 4000+ absentee ballots not counted in the contest, should now be considered. This should have been presented in the original brief, and its presentation for the first time in the reply brief is a violation of procedure. Why? By waiting for the reply brief to present this new and novel plan, counsel for Franken has no chance to respond (p.s. that's why they call that side the "respondent") in writing.
Per my prior post #5, even if the Court rules that an equal rights violation has occurred, I do not believe a remedy requiring more votes to be counted will be selected.
The only reasonable alternative would be to declare the election invalid, thus necessitating the legislative branch to require a new election to be held.
I am personally insufficiently knowledgeable of law or case history to venture a legal opinion of the likelihood of the MnSC ruling that an equal rights violation has occurred.
But I can offer a common sense consideration.
It would seem to me that it is unknown whether the variance in treatment of absentee ballots by the different voting centers resulted in a meaningful quantity of absentee ballots accepted that should not have been counted.
From a common sense perspective, I would think that without this knowledge it would be difficult to ascertain that any group of voters has been treated unequally.
There is a method that can be used to determine if that is the case. But I would think the MnSC would probably place the burden of proof on the plaintiff to present such evidence. To my knowledge, the Coleman team has to-date not developed this evidence.
And one last point.
One of the major unspoken differences between Bush vs. Gore and this election appeal is that there is not a potential constitutional crisis associated with this election appeal.
As usual, EB puts the positions out there in a very fair and objective summary.
It will be interesting to see how the supreme court decides.
As for the comments above, I think it would be nice if the answers were as simple as the writers make them.
Wow. Good write-up, Mr. Black, and good comments here too.
I will say, though, that I am more sympathetic with Coleman's case now than I have been for awhile. In addition to the remaining technical problems noted by commenters above, I wonder if the delay in presenting these specific recommendations, and what can only be interpreted as his failed strategy in the original court contest, haven't already doomed the Coleman case, whatever its merits.
Interestingly, Coleman says in the response: "The Court changed the rules of the game." No. They didn't. But, what the response does is not to change the rules of the game; but, actually change the game.
Coleman was Struck-Out twice in Trials. He hit foul balls and complained that the Umps got the call wrong. He got 3-Outs in the Game but stayed-up at bat hitting a few more fouls. Now, after Losing at Baseball he wants the Supreme Court to Rule like it was a Football Game and if the Ref's had called the Field Goals he kicked "Good" the whole game was at stake. You'll see how this works out with Mr.Blacks report after reading the Coleman Response in detail.
This could be a very interesting U.S. Supreme Court case.
Arguments in prior comments hinge around interpretation of Minnesota law and procedure whereas much of the Coleman team's briefs hinges of U.S. constitutional standards. Standards which the Minnesota Supreme Court is required to regard in its decision making. State standards can not violate U.S. constitutional standards.
Much of this is "well-settled" U.S law. The portion that is not yet settled is exactly where the Coleman team hangs its hat - equal protection, and how narrowly it should be applied. In other words a Federal question of how much leeway should be given with regard to imprecise human processing of ballots when it is clear that ballots with the same "perceived defects" were treated differently. These equal protection issues need not have been brought up in prior Minnesota arguments until after the Minnesota courts violate the U.S constitution in its decision(s).
I am wondering if the Minnesota Supreme Court will out of hand reject the arguments procedurally, thus intentionally passing the buck to the U.S. court instead of stepping up and clearly applying the U.S. constitutional standards. True, either side will likely appeal to the U.S. after a decision, but I beleive it would be much better if Minnesota would define those issues first.