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Senate recount appeal: Update of previous breathless look at the Coleman brief

Ink-stained wretch's note: If you read the original breathless first look at the brief that was filed about 3:30 this afternoon, skip down to the subhead that says: If you've already read the breathless first version of this post, the new stuff starts here. (If not, the management recommends you start at the top. I hope and believe this is the final version for today.)

The original breathless top
The Coleman Supreme Court brief (PDF) was filed this afternoon. It contains few if any surprises. It is a methodical review of arguments Team Coleman has been making in public for weeks, mostly that the Election Contest Court made one big error and two smaller ones, and that the MN Supremes must fix them.

The big argument is that the lack of uniformity in the standards used to accept and reject absentee ballots, between different counties on Election Day and between all of the Election Day standards and the "strict compliance" standard adopted by the ThreeJudges for the Election Contest phase, violate the constitutional guarantees of equal protection and due process. I'll summarize some of the details of that argument just below.

Team Coleman also continues to argue that both the Minnesota State Canvassing Board and the Election Contest Court erred in accepting the Election Day machine count from one Minneapolis precinct, even though an envelope containing 133 ballots was lost after Election Day and those ballots could not be recounted.

And Coleman continues to argue that "double counting" occurred, by accident, in many precincts because of the mislabeling of duplicate ballots, and that the trial court erred by not allowing further inspection of those precincts to see if the counts could be made more accurate. But the brief gave the lost ballots and double-counting arguments short shrift and focused on the disparities/equal protection.

There continue to be no allegations of any fraud or attempted fraud by any Minnesota voters or election officials -- a fact that is rare in these kinds of cases and of which Minnesotans should be proud. Nor is there any allegation that, in adopting different non-uniform practices regarding absentee ballots, any of the officials involved did so with an intent to help or hurt any party in the election, which should be another point of pride.

But the Coleman brief does assert that the effect of the non-uniformity was not "random," and that if the court had allowed Coleman to put in all his evidence, he would have demonstrated that the declared outcome of the election was an error. The brief specifically accuses the trial court of erring by not allowing a Coleman expert witness on statistics to testify, because that witness would have demonstrated that the impact of the disparities was not random.

Two ways to look at the problem, and what to do about it
The ThreeJudges' decision -- which was an error, according to the brief -- to adopt a "strict compliance" standard at the end of the process, without trying to reconcile that with the looser "substantial compliance" standard used by most counties on Election Day, creates a problem that the Supremes must fix in one of two ways. Perhaps for the first time, Team Coleman expresses a preference between those ways.

Way One to look at the problem: Suppose the high court believes that absentee ballots must be assessed according to a strict compliance standard. In that case, any ballots that fail to meet that standard are "illegal" and should have been rejected. If the Supreme Court decides to view the problem that way, then the current statewide count contains many ballots that were "illegally cast." The number of such ballots "greatly exceeds" the 312-vote margin by which Franken was ahead in the contest court's final count, the brief states. (Coleman doesn't say, nor even estimate, how many such improper ballots are in the current count, but that's because, according to the brief, the ThreeJudges erred by not allowing Team Coleman to put in all the evidence it had on the many disparities.)

If that's how the Supremes see the issue, it's a big problem because there is no way to identify which absentee ballots were "illegal" and subtract them from the count. But there are two remedies available, both awkward and unprecedented in Minnesota: either adopt a statistical method of adjusting the count, based on which precincts were stricter or looser in their treatment of absentee ballots; or acknowledge that messed-up count makes it impossible to determine who got the most legally cast votes and set the whole election aside. (The brief doesn't specify that that would seem to require a re-run of the election.)

Way Two: But the brief specifies that Team Coleman does not believe this is the best remedy. The other way to solve the equal protection problem, the brief argues -- and the way that is more consistent with the MN Supreme Court's usual principle of wanting to enfranchise voters even if they have made minor technical errors -- would be to count thousands more of the absentee ballots that were excluded.

The way to do that would be 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 thousands of the rejected absentee ballots against that standard and see which ones should be counted.

The brief doesn't contain a specific number of ballots that it believes should be counted but said it should include all of the 1,359 that Team Coleman identified at the end of the case and asked the court to count (most of which did not meet the court's strict compliance standard), many of the approximately 4,800 absentee ballots that Coleman had earlier asked the court to consider before it established the strict compliance standard, and all of the approximately 270 absentee ballots that were rejected on Election Day, then identified by the counties themselves as wrongly rejected, then vetoed by one or the other of the two campaigns under a Supreme Court order that gave them that veto power, and then not reinstated by the Contest Court.

They didn't say so in the brief, and it may not turn out to be true if all those ballots are counted, but Coleman attorney Ben Ginsberg has said, based on the partisan leanings of the counties from which many of those ballots came, if they were all counted, Coleman would come out ahead.

The brief specifies that Team Coleman believes this method, lowering the standard to "substantial compliance" and counting a bunch more ballots, is the best way to solve the problem that the ThreeJudges created.

If adopted, the case would be remanded back to the Contest Court with orders that it create such an amalgamated standard, decide which previously rejected ballots meet the new standard, add them to the count and then decide who got the most legal ballots.

Brief: The mistakes were intentional
Team Coleman took the Contest Court to task for dismissing the problem of lack of uniformity as the kind of minor, "garden variety" disparities that are bound to occur if you have an election superintended by thousands of election judges scatterred across precincts, counties and municipals. The brief says:

The record conclusively establishes that local officials applied the statutory requirements differently and inconsistently — not just by minor, isolated, “garden variety” errors to be expected in every election, but by extensive, wholesale and intentional decisions.  Different counties and municipalities deliberately reviewed similar absentee ballots differently, accepting ballots that were not in strict compliance with the statute but had sufficient indicia of trustworthiness.  As a result, some ballots were counted while other identical ballots were not.  Given the closeness of the election, this combination rendered the result of Minnesota’s 2008 Senate election, as certified by the trial court, inaccurate.

One barrier that Coleman is trying to overcome, perhaps as a consequence of the Supreme Court's ruling in Bush v. Gore, which complained that Florida had no uniform standards by which to conduct a recount, is that Minnesota does have explicit statewide standards for accepting and rejecting absentee ballots.

In calling the errors "intentional," Coleman is not arguing that the various county election officials were trying to create disparities of treatment. But he is arguing that these are not just cases of volunteer judges in two counties looking at different ballots and applying the state standards. On the contrary, the brief argues, based on testimony given at the trial by county election chiefs, the disparities grew out of county-wide policies and practices. Those policies are not the same as state law, but Coleman hopes they are close enough to actions of the state government to help him make his case under the equal protection clause.

If you've already read the breathless first version, the new stuff starts here.
Obviously, this post is based almost entirely on the argument of one side in the case. Franken will reply to these points by May 11. This is the day to let Coleman make his argument. For that purpose, although the logic is familiar to the recount obsessed, here is a substantial excerpt from the brief in which Team Coleman summarizes its main argument.

It starts with Coleman's lawyers, who have repeatedly said that the Contest Court made errors, offering the ThreeJudges a slight excuse. The ThreeJudges decided they didn't have full jurisdiction over federal equal protection matters, the brief states (although, to be clear, the ThreeJudges did write that the disparities across county lines did not constitute an equal protection violation). The brief suggests that the lower court was tightly constrained Minnesota precedents. But the Supreme Court, as the original author of this precedents, is better able to adjust those precedents in light of new facts and arguments and more likely to get a federal constitutional argument its due. The Coleman brief picks up:

"The trial court took the narrow approach it did, and eschewed jurisdiction to consider constitutional claims, because it undoubtedly felt constrained by this Court’s decisions in Wichelman v. City of Glencoe, 273 N.W. 638 (Minn. 1937), and Bell v. Gannaway, 227 N.W. 2d 797 (Minn. 1975), and by the plain language of Minn. Stat. § 203B.12, subd. 2. This Court, however, should not accept such a narrow approach. Instead, it must consider the constitutional impact of the materially different standards intentionally applied to absentee ballots as well as whether Bell and Wichelman really apply here.

Equal protection and due process mandate that similarly situated voters be treated the same: whether a ballot is accepted cannot be determined by where the voter lives. Those claims are not outside the Court’s jurisdiction—indeed, they are at the heart of determining which candidate received the highest number of legally cast votes. This Court should ensure one standard is applied consistently to all absentee ballots in this election and that all legally cast votes — but only legally cast votes — are included in determining, under Minn. Stat. § 209.12, the vote totals for each candidate. This means the Court should look back to election day and cannot ignore a record showing intentional material disparities and illegal votes counted."

Documenting disparities
Many pages of the brief are devoted to documenting the county-by-county variations.

The most famous, and strongest for Coleman's case, is the issue of checking whether the witnesses on the absentee ballots were themselves registered voters, as required by state law.

Carver County (and the brief doesn't say this, but it's Republican-friendly territory) checked the registration of absentee ballot witnesses and rejected 181 of its 5,251 absentee ballots on the grounds that the witnesses were not registered. That reason accounted for more than half of the absentee ballot rejections in that county, according to the Coleman brief.

By contrast, out of 17,127 absentee ballots submitted in (DFL-friendly) Minneapolis, and out of 7,800 absentee ballots in DFL-friendly St. Louis County, none were rejected for lack of a registered witness. That's apparently because those jurisdictions -- and most others in the state -- didn't check the witnesses for registration.

Coleman also argues that substantial disparities occurred -- and he says it was by county policy -- in how hard different localities checked to make sure the voters themselves were registered, how much slack they cut the voter if they thought the problem with the ballot or the registration was the fault of the election officials, whether voters seeking to register in order to vote absentee were required to show proof of address, and whether the voters' signatures between the absentee ballot application and the absentee ballot envelope were a close match.

According to the Coleman logic described above, it would be possible to go back over the rejected ballots from, for example, Carver County, and judge them according to the level of scrutiny given to absentee ballots in Minneapolis.

A right versus a privilege
The brief also tried to tackle a significant problem Team Coleman has had with Minnesota precedents. More than once in cases involving absentee ballots, the Minnesota Supreme Court has said that while voting is a right of citizenship, voting absentee is more like a privilege.

Under equal protection case law, the level of scrutiny applied to government policies or practices that impinge upon a fundamental right is very high and can be allowed only under extraordinary circumstances, but a "privilege" is entitled to less protection.

Many absentee voters probably could have made it to the polls on Election Day and wouldn't have had to worry about signature matches or witnesses. The trial court relied to an extent on the privilege-rather-than-right precedents in deciding to apply a strict compliance standard. Replied the Coleman brief:

"This Court has repeatedly held that enfranchisement is the goal of Minnesota’s election laws. Indeed, as set forth below, absent evidence of fraud or bad faith, this Court has never favored a strict compliance standard that leads to the disenfranchisement of Minnesota voters."

Bush v. Gore anyone?
Both sides in this case have a Bush v. Gore problem, actually several Bush v. Gore problems.

The biggest problem for Franken is that the Supreme Court's 2000 ruling in Bush v. Gore stated that disparate treatment of ballots within the same state is an equal protection problem, at least was in the Florida recount of 2000. We'll let Team Franken deal with that when their turn comes.

One Bush v. Gore problem for Coleman was that the U.S. Supremes made an unusual statement in Bush v. Gore that the application of equal protection to an election was so complicated and relied on such case-specific facts that the Bush v. Gore ruling shouldn't be used as a precedent. A second problem was that the Supremes in Bush v. Gore relied for their equal protection logic (and bear in mind that the equal protection clause applies directly to state action) on the fact that Florida state law provided no uniform standard for a recount. Minnesota law does provide such standards, including a standard for the treatment of absentee ballots. Here's an excerpt in which Team Coleman attempts to deal with that:

"The trial court’s attempt to distinguish Bush v. Gore, which makes clear that different areas of the state applying different interpretations of an applicable standard is unacceptable under the Constitution, is not persuasive.  There is no logical distinction between the unequal treatment of equivalent chads caused by the Florida Supreme Court’s imprecision (different counties interpreting the court’s holding differently) and the unequal local treatment of absentee ballots caused by imprecision in officials’ understanding and application of the statutory standard set forth in Minn. Stat. § 203B.12, subd.2.

Just because Minnesota’s standard was set by statute rather than court decision does not excuse the constitutional requirement that the standard be applied uniformly.  In both cases a standard has been inconsistently applied as the result of official imprecision.  Indeed, because it leaves standing—and, therefore, ratifies—local decisions made in accordance with their own interpretative gloss on the statute, without insisting on strict compliance for all absentee ballots, the trial court’s decision itself confirms the same constitutional violation at issue in Bush v. Gore.  Unequal treatment of similarly situated voters simply is unacceptable under federal equal protection law."

I've written before that Coleman's lack of uniformity/equal protection argument is not a terrible argument. Now it is fully on the table, subject to Franken's rebuttal. And I'm sure it will be answered point by point. Then we'll see what the five justices hearing the case think of it. For a much more lawyerly take on its merits, check out the not-so-breathless but quick first reacton of Prof. Rick Hasen, a highly regarded election law expert. (His version of "a not terrible argument," goes like this: "I continue to believe his equal protection argument is unlikely to be accepted by the Minnesota Supreme Court, but his arguments are not frivolous and will require careful attention from the Minnesota Supreme Court."

I'll close with a strange aside near the end of brief (with the weird aside in italics below). The excerpt has the added advantage of giving Team Coleman one more chance to state the essence of their case:

"In sum, as a matter of constitutional law, the overwhelming evidence of disparate treatment cannot be ignored — no matter how expedient it may be to do precisely that.  The deliberate and disparate treatment of large numbers of similarly situated voterswho had their votes counted only if they lived in certain jurisdictions—is unacceptable in any election.  It is especially so in one so close."

What the heck does that mean, no matter how expedient it may be to do precisely that? What think?

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Comments (11)

My analysis of the issues raised on Coleman's brief:

Issue #1(a): Trial court's ruling was correct as a matter of law. The variations were irrelevant to the question before the ECC. Coleman needed to show actual ballots that were treated incorrectly, and that these ballots made a difference in the outcome.

Issue #1(b): Coleman's notice of contest and interrogatory answers did not identify any wrongfully counted ballots, and this evidence was therefore properly excluded.

Issue #2: Interesting argument, but at the end of the day, Coleman did not prove that any wrongfully counted ballots were actually included in the totals or that they actually did change the outcome (as opposed to potentially could have changed the outcome), and therefore Coleman did not meet his burden of proof at the Contestant.

Issue #3: Coleman's one long shot for remand, but he would still lose after counting more ballots.

Issue #4: The statute does not mandate an inspection and the ECC did not abuse its discretion in refusing one.

Issue #5: This is a finding of fact that will not be overturned on appeal.

So Team Coleman basically wants the Supremes to adopt a third, different standard to use when counting the ballots? How is that equal protection????

The 'expediency' issue may refer to requiring a complete revote, which is the only scenario which would favor Coleman, since Republicans have better turnouts in special elections.

As you said, the standard for equal protection is much higher for "rights" than for "privileges". If the court accepts Coleman's equal protection argument for absentee ballots based on such weak tea, the logical extension of that reasoning would preclude a "legal" election from ever being held in Minnesota.

Thousands of polling places, thousands of election workers and thousands of different voter circumstances would--quite literally--make compliance with such a standard impossible. Minnesota's election laws and procedures would be left in ruins.

I doubt the MN Supremes want to go down that road.

Don't forget that the 4400 cherry-picked (by Ben Ginsberg of Bush-Gore fame) ballots out of the uncounted 11,000 absentee ballots that Norm Coleman wants counted have been ruled in every stage of the process to be "illegal" under Minnesota law. Would an election theft after the six months of hard work by the citizens and courts of Minnesota actually describe this appeal? It will be throwing the 3 million votes of Minnesotans in the trash can and replacing them with 4400 illegal absentee ballots. That is preposterous!! There is no demand by Coleman to count all 11,000 illegal ballots because Al Franken won the 1300 that were counted by 60% to 40% and would win by 2500 votes under that scenario. Why is this obvious fact not mentioned by the Star Tribune? If the Minnesota Supreme Court does not buy that argument, Coleman is going to the U.S. Supreme Court to try and get the same 5-4 decision that Bush got in 2000. Too, bad, you 3 million voters!

Assuming Coleman can prove the variation between counties, doesn't he also have to show harm? By that I mean the variations caused more ballots to be counted in DFL-leaning areas and fewer in GOP areas? If the variations are proven, but the effect is a wash or harmed Franken, would Coleman still have a case?

Another question: if Coleman gets a looser standard and the rejected ballots examined under that looser standard, could the court order just the ballots Coleman specified reexamined? Wouldn't all rejected ballots be reexamined, including the ones from DFL areas? I don't see then how Coleman could win, since he picked out a minority of rejected ballots. A looser standard would seem almost guaranteed to increase Franken's lead.

"In 2006, Ginsberg admitted to a law school audience:

Just like, really, with the Voting Rights Act, Republicans have some fundamental philosophical difficulties with the whole notion of Equal Protection."

The Coleman argument is the ultimate, hypocritical Hail Mary. Since the Election Court followed state law in its February 13 ruling, Coleman argues that they should have ignored the state statutes and adopted a substantial compliance standard. Without a doubt, if the Election Court had favored a substantial compliance standard, Coleman would have argued that they were activist judges making new law. It's heads, Norm wins; tails Al loses.

As Alan Paulson notes above, Coleman did not present the evidence necessary to prove his case. Surely the MN Supreme Court will see through this hoax, and we will have our second senator before the end of June.

The dismal record makes this a lousy case for elucidating any improvement to Minnesota election law.

Its fundamental to appellate practice that the petitioner address all of the reasons he lost in the trial court. Coleman neglects to explain why he never pled the specific ballots he now wants to challenge, why he never answered interrogatories about those ballots, or why he never marshaled the putative evidence that might have grounded his claims. The offers of proof are just so much air, since Coleman never addresses why the trial court rejected his putative evidence based on his pre-trial and trial conduct. Why do these brief writers believe that the best place to stick the most critical issue in the case is footnote 9 on page 28?

Coleman's Equal Protection argument is based on the story line he wishes he had made in the trial court, not the record he really made. His only mention of the seminal strategic blunder is buried in footnote 3 on page 19, where Coleman admits that he stipulated that practically all the ballots on which he bases his Equal Protection claim were and are legally counted. In other words, Coleman gave away his case at the outset, and he provides no explanation about why he should be relieved of his stipulation, or why he has standing to raise the putative constitutional claims of non-party voters.

His alleged "two classes" that were treated differently only exist if the Court ignores Coleman's written stipulation that one of the classes' ballots (all those counted before February 13) were legally cast and are no longer part of this case. At the time, Coleman made a strategic decision that this stipulation was in his best interests. At best, he claims in the Brief that he made some unilateral mistake. The Court will hold him to that stipulation, because the precedent of a contrary outcome would throw all of Minnesota civil trial practice into disarray.

Its also interesting how, in different sections of the brief, Coleman argues both that the trial court's ballot law order merely restated pre-existing law, and that it "changed the rules". Pretty clever trick for a single order. If they say it enough times, you almost get to thinking that there were two standards used. But the trial court nailed it when it concluded that Minnesota had and applied a single standard to absentee ballots, with Constitutionally permissible variation in the degrees to which the ideal of perfection were obtained. The idea that Equal Protection requires greater administrative exactness if the election is close, is preposterously impossible to achieve.

There is more sleight of hand here. Coleman bases his whole Equal Protection theme on the lower court's Conclusion of Law No. 151, that the Constitution grants the Senate jurisdiction over certain Equal Protection objections to an election. The Brief conveniently ignores Conclusions of Law 152 through 156, an entire separately attached memorandum devoted to why the well-considered Equal Protection claims are groundless, and all the Conclusions of Fact that butress those conclusions in this case. The brief is obsessive on this point. Does Coleman expect that the law clerks aren't going to find them? I don't buy this as offering a "convenient out" to spare the trial court's feelings. This seems like an elaborate ruse to avoid facing the trial court's reasoning. As such, it is ultimately a strategic error, since it just begs the Court to read and reread that opinion. That Big Lie is just sitting there festering.

Has anyone else noticed how few of the precidents Coleman cites in favor of his "substantial compliance" argument actually deal with absentee ballots? Do they think the Court doesn't know there's a distinction? There's an awful lot of boilerplate con law rehashing here, but not so much case law on point to the factual situation presented.

The remedy section seems like a "Hail Mary" pass. De-certifying the winner would disenfranchise one hundred percent of the voters, so that ain't gonna fly. Unringing the bell by removing ballots Coleman later shows were "illegal" is impossible, so that ain't gonna fly. Counting ballots that do not comply with Minnesota absentee ballot statutes as some sort of rough justice makes a joke out of the very specific legislation, so that ain't gonna fly. I'd think Coleman would want to be more precise and forceful about what he wants, or the Court will default to the obvious solution of denying everything.

You just can't make much out of the pig's ear of Coleman's post election trial strategy. If this is the best statement of Coleman's case, I believe the Court will have no trouble denying the appeal in fine.

The usual thoughtful reflections on a topic of serious interest.

One statement, however, caught my eye:

"There continue to be no allegations of any fraud or attempted fraud by any Minnesota voters or election officials..."

In the spirit of Ben Franklin who said (speaking of the Parisiens when he was ambassador there "They all love me least they SAY they love me":

As an election judge, I know exactly how the ballots counted by the machine could exceed the ballots on hand, as does anyone who knows the process. It's pretty simple. And I suspect that is why those Minneapolis missing ballots keep coming up.

Similar thoughts come to mind about ballots without matching signatures and without witness signatures, and about ballots that were never checked to see if the voter was indeed registered or the witness's qualifications to be one was not verified.

While no-one SAYS there has been any fraud, it's a bit of a stretch to think no-one THINKS there has been fraud.

All Coleman had to do was produce an AB envelope from Minneapolis or Duluth where the witness wasn't registered to vote. That's all, just ONE such envelope. That would have been enough to prove that illegal ballots were actually cast.

They didn't do that -- which the court must take to mean that they COULDN'T do that. Coleman's claim is a pile of assertion unburdened by actual facts.

Epic fail.

Eric writes: "The [Coleman] brief suggests that the lower court was tightly constrained [by] Minnesota precedents. But the Supreme Court, as the original author of this precedents, is better able to adjust those precedents in light of new facts and arguments and more likely to get a federal constitutional argument its due."

So, Norm's *for* activist judges now?