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:

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 is probably the biggest one, which I'll discuss below.)

2. 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.)

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. (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.)

4. 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.)

5. 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.