(My teammate Jay Weiner already posted about this earlier today, but I wanted to add some more analysis. Coleman's case is shrinking fast, and the trial is speeding up.)

The dismissive comment ("irrelevant") arises in a seemingly peripheral matter. Coleman has been seeking to call St. Cloud State University economist King Banaian as a witness to testify about his findings on the variations between counties in the way they handled ballots. Team Franken and Team Coleman have been arguing in the background for some time about him, with most trial watchers (me included) not paying much attention to the should-Banaian-be-allowed-to-take-the-stand kerfuffle. I had assumed the argument was about whether he was qualified (he's an economist, not a statistician) or impartial enough to serve as an expert witness (he's a conservative activist-writer-blogger and participates in the very conservative Northern Alliance Radio Network on Patriot Radio. I've been his show. He's a nice guy, and smart.)

And maybe they were arguing about that stuff, but in ruling Banaian a non-starter for this trial, the judges went in a different direction, seizing the opportunity to reach a new height of clarity in telling Team Coleman how they are feeling about Coleman's argument -- an argument on which Coleman's legal team seem to be betting its case -- that Al Franken's 255-vote lead was fatally flawed by disparities in the way different counties accepted or rejected ballots.

TheThreeJudges are not buying the argument, not going to buy it, and do not seem to want to hear any more about it. If Coleman's case depends on that argument, he had better hope that a different court likes it better, and likes it enough better to disregard what will be a clear unanimous ruling of this tripartisan three-judge panel.

Here is the key paragraph from the court's brief ruling that Banaian can't testify:

"The only question that can be decided in an election contest is which party received the highest number of legally cast votes and therefore is entitled to receive the certificate of election. Minn. Stat. 209.12. The court will be reviewing all ballots presented according to the uniform standard contained in Minnesota Statutes Chapter 203B. It is irrelevant whether there were irregularities between the counties in applying Minnesota Statutes 203B.12.subd. 2. prior to this election contest. The Court does not believe Banaian’s testimony would assist in determining the issues properly before it."

This brief statement seems to lay out what happens from here. My layman's translation:

The judges will spend the rest of the trial listening to testimony and looking at evidence about the ballots from the shrinking universe -- perhaps around 3,000 at present -- that meet the court's definition of possibly-improperly-rejected ballots. They will apply the strict legal standard set in the law in deciding which of those ballots should have been accepted (which likely means that only a small portion will be accepted). Those they will open and count. They will not take into account whether some counties used a lower standard (and therefore may have accepted ballots that  would not meet the ThreeJudges standard of what constitutes a legal ballot). Ballots counted by those counties will stay counted, even if, perhaps, they should not have been counted. At the end of the trial, with the newly-accepted ballots counted, someone will have more votes, and that guy is entitled to receive a certificate of election. (The judges can't actually give him the certificate, only rule who should get it. The governor and the secretary of state have to sign it, and, unless the Minnesota Supreme Court decides differently, the guv and SOS will almost certainly hold off on the certificate if the ruling is appealed.)

Law Professor Edward Foley of Ohio State University says that in the paragraph above, the judges have dismissed, with apparent finality for this trial, the Coleman argument that disparities between counties creates a problem under the equal protection clause of the U.S. Constitution. The Coleman lawyers are being told to stop making that argument to these judges.

But Foley believes the Coleman team can still try to find a way to ask the judges this question, which doesn't depend on an "equal protection" argument:

If the votes counted before the contest began included a substantial number of ballots that were not legally cast, according to the high standards that the court has set, and these illegally cast ballots cannot be uncounted, how can the court determine "which party received the highest number of legally cast votes and therefore is entitled to receive the certificate of election."

What think?