If you read the earlier quick reaction to the Al Franken brief, this is a complete redo from the top.

Team Franken's reply brief (PDF) attempts to rebut, disassemble and really demolish every aspect of Team Coleman's case. Of course, that's what a brief is supposed to do. The brief was direct and aggressive in urging the court to not only declare Al Franken the winner of the election but also to order Gov. Pawlenty to issue an election certificate without any shilly-shallying.

At times, the brief seemed to cross the line from calling Norm Coleman's arguments weak to accusing Coleman's lawyers of doing a lousy job with such a case as they had.

I'll be interested to see how Team Coleman tries to reply (in case you've lost your program, this is the one and only briefing opportunity for Franken during this, the state Supreme Court appeal. Coleman, who already filed his appellate brief, gets one more crack in a written reply due Friday. The Court will hear oral arguments on June 1. Then it's decision time.

Franken starts this round with a big advantage, having already won a fairly overwhelming victory at the trial court level with a ruling that, as Franken attorney Marc Elias noted in his conference call with the press this afternoon, was the unanimous opinion of a three-judge panel that included an appointee of a Dem governor, a Repub governor and even an appointee of the Independence Gov. Jesse Ventura.

So the Franken brief spent a lot of pages summarizing what TheThreeJudges already ruled: that the Minnesota Senate election was well run and the ballots fairly counted; that Minnesota statutes include clear rules for the acceptance and rejection of absentee ballots; that the disparities in the treatment of some absentee ballot issues across county lines were minor, unintentional and the sort of irregularities you have to expect if 2.9 million votes are to be counted across 87 counties and thousands of polling places, that those disparities do not constitute a violation of the Equal Protection Clause of the U.S. Constitution's 14th amendment and that Al Franken got the most legally cast votes.

Coleman says the ThreeJudges got it wrong. I've said that Coleman's argument is "not terrible." And, as I've written before, none of us knows much about how the MN Supremes will see the issue. But I was impressed with the relentless power of the Franken reply, on the facts, the state laws, the constitutional arguments, the technicalities and an appeal to common sense.

One powerful point -- and it was one of those that seemed to imply a critique of Team Coleman's lawyering -- was the small number of disputed ballots for which Coleman proved that the voters were registered.  Coleman has asked that about 4,400 additional absentee ballots (hereafter, AB's) be accepted and counted, on the argument that they were wrongly rejected. The counties original rejected those AB's for major or minior flaws -- such as apparent signature mismatches between the ballot envelopes and the ballot applications, or the use of a witness who wasn't a registered Minnesota voter. But Coleman has argued that some counties applied too strict a standard and rejected ballots that would have been accepted in another, less-strict county. That's the essence of his Equal Protection argument.

The ThreeJudges of the Election Contest Court told the parties that they would count previously rejected ballots for which all of the requirements of the law were proven. Coleman argues that the contest court set too high a standard and disputed whether some of those strict standards should be applied. But no one has argued that non-registered voters have a right to vote.

When the contest trial was over, TheThreeJudges found that it had before it fewer than 700 absentee ballot envelopes for which the registration of the voter had been proved. According to the Franken brief, more than half of those 700 ballots were introduced by Franken. So Team Coleman put before the court fewer than 350 ballots for which it proved that the voters were registered. Does Coleman now suggest that even the requirement of voter registration must be waived? Could Coleman find no more than 350 likely pro-Coleman voters who met even that standard? Or did Team Coleman simply fail to put into the record the evidence that the trial court needed to consider counting more ballots? The Franken brief stated:

“The trial court rejected all but a small number of Appellants’ absentee-ballot challenges for a simple failure of proof.”

The Franken brief also argued -- and it seems to be true based on my knowledge of the evidence -- that Coleman did not offer proof that, if more of the rejected AB's had been counted, Coleman would have won the election. The election contest is an adversarial proceeding and, since Franken was ahead at the end of the recount, the burden was on Coleman to produce -- not just evidence of disparities in counting, and not just arguments that some wrongly rejected AB's might have been votes for Coleman -- but evidence that if all legally cast ballots were accurately counted, Coleman would have a plurality of the votes. The Franken brief asserts that Coleman failed to meet that burden. Citing an 1865 Minnesota case, the Franken brief asserts that:

"Minnesota has, for over 100 years, required that contestants bear the burden not only of proving "that there were irregularities," but also proving "that they had affected the result." In this case, the brief asserts: "Appellants [that would be Team Coleman] failed to show that any error [affected] the outcome of the election."

The brief peppered Coleman’s main argument -- the equal protection argument -- with six numbered pellets of buckshot.

1. Coleman cites the Bush v. Gore (BvG) case for the proposition that disparities of treatment of ballots violate the Equal Protection Clause. Franken says the differences between the level of chaos and unequal treatment of ballots is not comparable. The Supreme Court said the ruling in the Bush case was 'limited to the present circumstances." BvG found that Florida had conducted a "standardless" recount, while Minnesota had standards. etc.

2. The cases that are more similar to Coleman-Franken, the brief asserts, led to rulings that "the Equal Protection Clause does not invalildate an election based on reasonable variations in the systems local entities develop to implement state election laws."

3. Coleman doesn't acknowledge that disparities in the checking of AB's by different Minnesota counties reflect differences in the resources they had to spend on the task.

4. The Equal Protection Clause has been ruled not to invalidate elections over minor variations. The rule otherwise (Franken cited a 1981 federal case for this point) would require the federal courts to take over minute supervision of all elections.

5. Franken argues that a successful equal protection argument requires the showing of intentional or arbitrary discrimination. Coleman, it should be noted, has said the differences between counties was intentional, since they resulted in many instances from policy decisions made by the various counties on how to deal with various possible defects in AB's.

6. An argument I have not heard before: If it was really necessary to give precisely uniform treatment to all AB's, the rememdy would be to bring all 300,000 AB's and envelopes to a central location for uniform screening. Since Coleman has not proposed that, it shows that he isn't really seeking equal protection. (That is somewhat absurd, at least with reference to AB's that have already been counted, since the ballots can no longer be matched to their envelopes. But perhaps it does suggest the absurdity of seeking perfect equality.)

Technicalities

The Franken brief employs quite a few of what to a layman seems like technicalities: That Coleman failed to raise some of his arguments in the right way, or in time, or that he is arguing against things that he previously stipulated were true or acceptable. We'll save those for the law school version of this post.

But this one is somewhere between a technicality and rough justice. So far as we know, all of the disputed absentee ballots were originally rejected for failure to comply with at least one of the statutory requirements. A voter who failed to meet the requirements of the statute cannot complain about equal protection of the laws because:

“The Constitution does not protect the voting rights of voters who do not follow the law.”

As I mentioned in my endless series on the history of the Equal Protection Clause, the U.S. Supreme Court has construed state actions that place a burden on fundamental rights are susceptible to "strict scrutiny" under the Equal Protection Clause. And the right to vote is a fundamental right.

But, argues the Franken brief, the right to vote absentee is not a fundamental right. It's not really a right at all, more of a privilege, Minnesota courts have said. In fact, argues the brief, it's entirely up to each state to decide whether to allow absentee voting at all, and when they do allow it, "any restrictions a state imposes on the mechanics of and qualifications for absentee-ballot voting are subject only to rational basis review." Minnesota set the standards it set and the courts have consistently found that those standards are entitled to strict compliance.

In its brief, Team Coleman asserted that the ThreeJudges erred by insisting on strict compliance. To reduce or eliminate the equal protection problems that occurred by the disparate treatment of AB's, Coleman's brief asked the Supreme Court to study the various standards used by different counties and cities in their treatment of absentee ballots, create a new "substantial compliance standard, built by an amalgam of the practices on election night," and then assess the rejected absentee ballots against that standard and see which ones should be counted.

Replies the Franken brief:

Coleman "asks the court to subsitute its judgment for a clear statutory scheme," to invent by judicial fiat “an invented regime that finds no support in the facts,  has no basis in law and suffers from a host of procedural problems.”... "Appellants cannot demand that this Court simply ignore the law."

At the end of the brief, Team Franken asks the Supreme Court, not only to affirm the lower court and declare that Franken received the most votes and therefore deserves a certificate of election, but to order Gov. Pawlenty to issue the certificate. In his press call, Elias made clear that he was responding to public comments in which Pawlenty has talked about taking some time to analyze the decision.

On the contrary, Elias argues, Pawlenty has a “ministerial duty” (that phrase implies a lack of discretion) to issue the certificate of election to Franken as soon as the Supremes rule. He even offers, in the brief, to waive any Franken claim to be reimbursed by Coleman for its costs relating to the appeal, in hopes of cutting 10 days off the time to finish the case.