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A step-by-step forecast: Franken will likely be seated by May or June

We, the denizens of Franken-Coleman Recountland, are back in a holding pattern, although this one could be over any minute.

Any day now -- personally I'm thinking it will be tomorrow, but don't rule out later today -- TheThreeJudges will issue an order ending the current chapter known as the Contest Trial. We, the recount-obsessed, all seem to think we know what the order will say. I agree with the conventional wisdom on that one, that the ruling will be favorable to Al Franken. This will be an important step, and the odds continue to favor the eventual seating of Franken in the Senate as they have ever since he took the lead during the State Canvassing Board phase.

Those who are impatient and anxious for that day may be frustrated to contemplate the number of potential steps still remaining and the number of opportunities for delay or a sudden reversal of fortune. They are all longshots, but numerous.

One thing you really should know, but it's hard to learn because so much of the commentary seems to want to lead us to another conclusion: The likeliest outcome -- no matter whether Team Coleman takes their case to the U.S. Supreme Court and/or tries to get a fresh start in federal district court -- is that Franken will be seated in the Senate in roughly May or June.

Yes, it's theoretically possible (although unlikely) that the argument will live on for many months (as you may know, Sen. John Cornyn, R-Texas, has said "years"). But even if the case lives on, Franken will, in all likelihood, already be seated in the Senate. Too many pieces, including this one from today's Strib front page, suggest that Minnesota will remain a one-senator state as long as Coleman is appealing his case. That is unlikely, and if you read the Strib piece carefully, the same experts who say it is possible, say it is unlikely.

I just spoke to one of those election law experts, Guy-Uriel Charles, who said that the "significantly greater likelihood" is that Franken will get an election certificate soon after the Minnesota Supreme Court rules.

Since I can't seem to stop thinking about them, here's part one of a guided tour of the path, potential twists and slowdowns going forward.

Step 1. Three-judge panel rules.

Very soon. They seem likely to declare that with all ballots counted that should be counted, Franken has won by 312 votes and is therefore entitled to a certificate of election. TheThree will also make a final ruling on two issues that have been around forever: the "missing" ballots from Minneapolis, and the "double-counted" duplicate ballots. Based on what the judges have said and written so far, and especially the fact that these issues were the subject of previous rulings of the State Canvassing Board, it seems unlikely that Coleman will benefit much from TheThree's decision on those issues. Even if he did, there aren't enough votes at stake to put him into the lead.

Coleman's lawyers have all-but-conceded that they will lose this important round. It may be important, in assessing the future course of things, whether their order is unanimous. A 2-1 ruling with a strongly worded dissent will be a small-to-medium-sized blow to Franken. Thus far, everything TheThree has done has been unanimous. A unanimous ruling will have extra weight going forward and, since TheThree have a tinge of tripartisanship (one was appointed by DFL Gov. Rudy Perpich, one by Repub Gov. Carlson and one by Jesse Ventura, although they were appointed to the special contest panel by Supreme Court Justice Alan Page, widely presumed to be a DFLer of some sort).

Thus far, the entire process from Election Day to today has been impressively civil, transparent, orderly and non-partisan, even though it has involved elected and appointed officials of various partisan backgrounds. Minnesotans should be proud of that fact and the rest of the country should be impressed by it, considering what we have seen in other states under similar circumstances.

It may also be important what TheThree say in their order about Team Coleman's main arguments regarding "equal protection"/lack of uniformity in the treatment of absentee ballots by different counties and at different stages of the recount process. These issues -- especially equal protection because it arises from the federal Constitution -- are the only chance that Coleman will have, down the road if he decides to go down the road, in getting either the U.S. Supreme Court or a federal district court to take the case.

If TheThree make clear that they have seriously and respectfully considered the equal protection aspects of the case, and have developed a solid reason for not adopting any of the three ideas that Team Coleman has suggested -- 1. count a bunch more of the rejected absentee ballots, 2. adopt a statistical hypothesis and adjust the existing county precinct-by-precinct, or 3. throw out the election results entirely -- it may well influence the decisions of federal judges as to whether they have any reason to take the case.

Step 2: Notice of appeal to the Minnesota Supremes.

Democrats have been trying to advise, hector or pressure Coleman against doing this. If he decides not to, the case will be over and Franken will be seated in the Senate within days. But that's not gonna happen. Both Coleman and his lawyers have said for weeks that they believe their best shot will be on appeal. (That's certainly true, if the conventional wisdom is correct about their chances of prevailing with TheThree).

Bet the farm that -- notwithstanding the earnest concern expressed by many Dems about the damage he will do to his future political prospects if he persists -- Coleman files the notice of appeal. State law requires that he do so within 10 days of the final ruling of the contest panel.

It will be of modest interest to note how many of the 10 days Team Coleman takes to file. He has said on the radio that he will not need 10 days. It is just a notice, which can be filled out quickly and easily, not the appeal brief.

Many Dems have stated, as if it were a proven fact, that Coleman knows he cannot win and is continuing the case solely and despicably to delay the inevitable seating of Franken. I am aware of no evidence to support this fairly serious allegation of abuse of process. Coleman did not take the maximum 10 days after the Canvassing Board's final action to file his notice of contest -- in fact he filed it on Day One. His trial team could easily have dragged the contest trial out longer by putting more invididual voters on the stand, and, in fact, Team C seems to have blundered by not doing so. Certainly, it was not a decision consistent with a strategy of maximum delay. If Coleman waits until day 10 to file his notice, I will consider that the first dilatory tactic. If he files in the first days of the window, will his critics concede that he has passed up a chance to delay the case further?

There is considerable difference between Coleman knowing that his chances of returning to the Senate are slim and shrinking -- which Coleman does know, notwithstanding all the brave public expressions of confidence by himself and his lawyers -- versus knowing that they are nil, which they are not.

Coleman is absolutely entitled legally to appeal the contest court's ruling to the State Supremes and has at least some chance of breaking through with some portion of his argument.
If the vote count was reversed and Franken had a halfway credible legal argument to take to a higher court, would those Franken supporters, who are insisting that Coleman move on and get a life, be giving the same advice to their own preferred candidate?

A parting thought: The argument that Coleman should drop the appeal in order to keep alive his political prospects has a couple of unstated assumptions:

  • that Coleman wants to be governor (what else could he aspire to after being a senator?),
  • that there will be an opening for a new Republican guv candidate in 2010,
  • and that the political damage Coleman has already taken during the election and recount leaves him in a good position in case Gov. Pawlenty decides not to seek a third term.

I'm not sure of any of those assumptions. It may be that the small flicker remaining in Coleman's chance of hanging onto his Senate seat is the brightest hope he has for a political future. And one last contrarian thought. If Pawlenty doesn't run and Coleman wants to be governor, he will first have to get the Repub nomination. The chance of holding that Senate seat is much more important to the national Repubs than Coleman's political future, and loyalists will not give him any points if they feel he dropped out of the recount while there was still any hope, however slight. If Coleman does hope for a political future, there is significant tension between doing what the party base wants and marshalling his appeal to Minnesota moderates and swing voters whose support he would need in a guv run.

U of M political scientist Larry Jacobs, the uber-analyst of Minnesota political matters, has been giving the opposite analysis, so I ran my thinking by him and, sure enough, he disagrees with me. He notes that:

  • Coleman's life story suggests he is a "career politician," and nothing recent suggests that he is ready to be done with that career.
  • Evidence suggests it is more likely than not that Pawlenty will forego a third term to concentrate on his presidential aspirations, although nothing is definite on that front.
  • If Coleman does run for governor, he will start out as the "likely frontrunner" for the Repub endorsement nomination, the only likely Repub candidate other than Jim Ramstad with statewide name ID.
  • The level of annoyance that Minnesotans feel with Coleman for taking the recount and contest this far has not fatally damaged his brand. If he goes further, especially if he goes further than the MN Supreme Court level, the sore-loser image will grow quickly.

Step 3: The MN Supremes take the case.

This is automatic. The federal courts mentioned above can and quite likely will decline to give Coleman's case a hearing. But state law guarantees the loser of an election contest gets a state Supreme Court review. Chief Justice Eric Magnuson and Associate Justice G. Barry Anderson are widely expected to recuse themselves (because they sat on the Canvassing Board, whose work will be part of the record the high court will review). But this is entirely up to them and won't be definite until they announce that they have recused. If they recuse, five justices will hear the case. It has been suggested that another member of the court, Justice Christopher Dietzen, might recuse because in his pre-judge life he gave two $250 contributions to Norm Coleman's campaigns. Again, it's entirely up to Dietzen.

There have been several media references to a deadline for the filing of briefs, 15 days after the notice of appeal is filed. This is a misreading of language in subd. 4 of the Minnesota statute on appeals from election contest courts. The Supremes will set the briefing schedule when they get the case. For those keeping track of the passage of time, this will come in two steps. Since Coleman is the appellant, he will file his brief first. Then Franken will be given additional time for a rebuttal.

After the briefs, there will almost surely be oral arguments, which should be riveting to us, the recount-obsessed. That schedule also remains to be set. Surely both sides are already hard at work on their appellate briefs.

State law that calls for the Supremes to drop what they are doing and handle an election contest appeal quickly. Such an appeal "takes precedence over all other matters before the Supreme Court."

The Coleman brief will be interesting. Ben Ginsberg has laid out Team Coleman's equal protection argument often to the media in the hallway outside the contest courtroom, the argument has been alluded to in various filings and Joe Friedberg summarized it well during his closing argument in the trial. But the Coleman legal team has not really presented that argument fully and clearly in legalese. This will be the biggest and possibly the best shot Coleman has left.

I've written a couple of times that Coleman's lack of uniformity contention is not a terrible argument. During the contest trial, Coleman demonstrated that different standards for the acceptability of absentee ballots were applied in different Minnesota counties. Many (no one knows how many) absentee ballots were counted in many counties that were not judged against the high standard that the contest panel applied. Many absentee ballots (no one knows how many, nor whom they were for) would not have met that high standard, but were counted. While I still believe Minnesota has one of the best election systems, it is not perfect. And when the margin is 312 votes out of 2.9 million cast, any error may have affected the outcome.

To me, as a non-lawyer, the equal protection version of the argument (some voters received different treatment than others) is not as compelling as the argument that Minnesotans cannot be totally sure who would have won the election if all ballots had been judged against the proper legal standard.

I'm definitely not saying that that argument should prevail, nor that it will. But that argument is not nothing. It merits serious discussion and consideration.

There are many excellent counterarguments on behalf of Franken. Compared to Florida in 2000, Minnesota has very clear statewide standards:

  • Variation in the application of those standards across 87 counties and thousands of precincts is part of every election and probably cannot be eliminated.
  • There has been no showing of fraud or any malicious intent to disregard standards.
  • The ballots that should not have been counted cannot be uncounted. Counting more ballots that should not have been counted will not make the count more perfect but arguably less so. Coleman has not shown that counting more ballots will change the outcome.
  • There is no practical way to perfect the count and, in an election this close, perfect confidence in the final result may be impossible.
  • Throwing out the election would be unprecedented in Minnesota, has no basis in state law, would be costly in many ways and would drive substantial numbers of Minnesotans insane.

All I mean to say is this: We think we know (and the order this week will presumably confirm) that the ThreeJudges didn't buy the Coleman argument. Those who have decided that Coleman has no chance have concluded that every other court that hears the argument will have the same reaction. But there is no basis of which I am aware for predicting how the MN Supremes will feel about this argument.

There appears to be zero possibility, by the way, that the court will rule Coleman the winner of the election. There is no basis to do so. Ginsberg said recently his optimal outcome would be that the high court will remand the case back to the contest panel with orders that it count some more ballots, the more the better, from Coleman's viewpoint.

Even if more ballots are counted, the odds favor the candidate who starts out the re-re-recount with a 312-vote lead. But a remand for more counting will certainly add to the timeline for getting to an election certificate.

If, as seems most likely, the Supreme Court affirms the contest court and rules that Franken has received the most legally cast ballots, it will be of some importance for future developments whether the ruling is unanimous. If it is, the pressure on Coleman to go no further will mount. And, for those interested in the speed of the process, it will be important whether the Supremes include a specific order to Gov. Pawlenty that he create and sign a certificate of election.

In the interest of not trying your patience on a Monday morning, I will hold until tomorrow's Part Two of this guided tour a discussion of Step Four: What might Pawlenty do if the MN Supremes rule for Franken? In the next installment, I will also try to back up my statement at the top that -- if all goes according to the most likely outcomes -- Franken will be seated by summer even if Coleman takes his legal arguments further.

A small but heartfelt p.s. In much of my coverage including this post, I have adopted the slightly playful term TheThreeJudges to refer to the contest panel. They are not, of course, indistinguishable but three highly-regarded jurists each in his or her own right and I have nothing but respect for the obvious effort they have made in the case to date and the sacrifice they have made to be away from home, families and more normal duties. They are Stearns Country District Judge Elizabeth Hayden, Hennepin County District Judge Denise Reilly, and Pennington County District Judge Kurt Marben

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Comments (23)

Have you talked to election law experts that can offer enlightenment on the body of law surrounding the equal protection argument? You report that the Coleman team is arguing that counties have applied different rules to absentee ballots, thus triggering an equal protection challenge. Has anyone tried such an argument before? If so, with what results? It seems to me like the Coleman argument would be stronger if a given county (and stronger still if a given individual) applied different rules to the pile of ballots they evalated. i.e. if an election judge changed their evaluation process based on a name, or apparent gender, or the color of ink used, that would seem to trigger an equal protection argument in a fairly obvious way. On the other hand, if the election judges / canvassers treated all the ballots they reviewed by the same standard, they have, by definition been treated equally. Haven't they?

You wrote: "To me, as a non-lawyer, the equal protection version of the argument (some voters received different treatment than others) is not as compelling as the argument that Minnesotans cannot be totally sure who would have won the election if all ballots had been judged against the proper legal standard."

A major problem with that latter argument is that IT IS NOT RELEVANT TO THE QUESTION BEFORE THE COURT. The ECC does not have to be "sure" or "certain" about anything. Coleman is the contestant and he has the burden of proving, by a preponderance of the credible evidence, that he, not Franken, received more lawfully cast votes. Simply proving there is doubt or uncertainty does not satisfy Coleman's burden. If Coleman cannot affirmatively prove that he received more votes, then the recount board's certification of Franken must be upheld.

The precedent you have to address on the equal protection issue is Gore v. Bush. And the problem with that case is that main problem that presents isn't so much how it applies the equal protection argument as it is whether the federal courts should apply the equal protection argument at all. Gore v. Bush itself, says the case is not to have precedential value.

My feeling about Gore v. Bush is that this was a case in which the court felt compelled to intervene and decide, because not to do so would have resulted in a constitutional crisis, possibly the most severe since the civil war. The Supreme Court did intervene in the 2000 presidential election as I think it had to, but at enormous cost to it's prestige and credibility. Where the presidency was concerned, they had to step in, but a senatorial election presents no such necessity, and I think that it will be very easy for the Supreme Court to allow the state decision, however it turns out, to stand.

There is almost no way Coleman can win. For him to win, the Supreme Court would have to open up the minutia of counting votes. Even the argument of equal protection falls back on the idea that the Supreme Court would, in a sense, say that professional vote counters and automated equipment can't do their job properly. The odds may not be nil, but they are off the charts.

Hiram, in the interest of accuracy, it's Bush v. Gore, not the other way 'round.

I think your analysis is spot-on, Mr. Black

Why would Mr. Coleman not continue to pursue his goal of being re-elected to the Senate - even if his chances seem slim. They are not non-existent, and the funding to do so is supplied mostly from the national Party.

I do suspect he may change his strategy with an appeal to the MnSC, for in my view the current strategy of counting known "illegally" cast ballots has virtually zero chance of prevailing, or even being seriously considered by the MnSC.

But his use of that strategy (however whimsical) during the Contest is understandable, because the Contest panel is tasked only with counting votes. The panel cannot rule on winners and losers based on claims of equal rights violations, though I suppose it could rule that specific underlying problems resulted in the inability to determine a winner.

I believe that your option "that Minnesotans cannot be totally sure who would have won the election if all ballots had been judged against the proper legal standard" is the only reasonable option to pursue with the MnSC.

It is unlikely that Mr. Coleman will prevail with that strategy (because elections can never be perfect), but at least there is some substance to the basic premise that is deserving of serious consideration.

But if by chance the strategy were to prevail in court, the only valid remedy would be to force another election. For even as much as I use the power of statistical probability functions because of their predictive value, they should never be able to replace an actual human voter.

Talk about disenfranchising!!


You make some excellent points.

A constitutional crisis was indeed a possibility at the time. And since the election was essentially a tie, the fact that the Court stepped in to make the ultimate decision may well have been intended to be for the greater good of the nation.

But where the Court failed was in its ability to act as a cohesive body (for at least this one decision), its use of murky language, and the decision by three of the justices to attack the Florida Supreme Court.

Had a unanimous decision came down with the right tone and language, I think the long-term reputation of the Court would have been significantly enhanced.

As it stands now, I suspect many Americans believe it is just another partisan element of govenment that cannot be trusted to put the good of the nation's citizens over what is best for political parties.

This is the best summary I've seen of the situation so far.

Here's one thought: if Coleman quit now, I think he'd have a very good chance for governor. I think Minnesotans have a peculiar sense of "fairness" that might lead them to put him there in order for both him and Franken to win in some sense.

Mr. Black's lucid analysis in this article finally raised my guilt level high enough ... just subscribed, as is right and proper. Mr. Black is one of the finest political reporter and editorialists in the country.

I really hope MinnPost is successful enough to keep talent such as Mr. Black in beans, clothes and shelter so they can continue their excellent journalism.

Noone can claim that different STANDARDS were used in different counties. ALL counties were trained and instructed on the exact same Minnesota state election law standards.

Some counties APPLIED the standard in a slightly different way, but this happens in every election where human beings are involved. For example, there is a state standard that a witness must be a registered voter in Minnesota. That is the STATE standard. Most counties assumed if the witness had a Minnesota address, then the witness was registered. One county also checked the state database of registered voters. State STANDARD was same but applied differently. And no proof that the different application benefited one candidate enough to change election result. The thee judge panel said Minnesota address was sufficient and allowed ballots on that basis.

Bush V Gore - the Supreme Court claimed that Florida did NOT have a STATEWIDE standard so different counties used different standards. NOT the case in Minnesota.

Excellent summary and analysis Eric! All along, I've cringed at Coleman's argument that we should count more of the rejected absentee ballots, just because others were likely already counted and included in the election night totals. Or as you so aptly summarized it: "Counting more ballots that should not have been counted will not make the count more perfect but arguably less so."

I'm holding out hope that Norm will rise above this and stop the appeal process, especially if TheThreeJudges are unanimous. I do NOT agree, however, that Minnesotans will elect Norm as governor out of a sense of "fairness"...

In the likely event that Norm Coleman fails to prevail and is looking for a job, I see two elected offices that may appeal to him in Minnesota. (First his ethics problems have to go away). As he has shown in the past, he would very much like to be Govenor. Tim Pawlenty will not do Coleman any favors and will wait to the last minute to decide whether to run or not and Coleman can't take him on directly. Coleman's other option is to run for Attorney General. This may seem like a step down, but what else can he do? He needs to earn a living real bad, the RNC will think twice before dumping Steele to hire Coleman with his boat load of baggage. How great a job is it to be a Republican lobbiest in todays political and economic climate? He's never been a lawyer in the real world.
Lori Swanson is now particularly vulnerable and currently being audited. This may be Colemans best and only hope. This may be a reason for Coleman not to drag these appeals out too far.

A very nice and thorough analysis, and I'd like to hope that it were so, but ....
You assume that the rule of law will be the main determinant of the process, and that Coleman will be governed by the possibilities of his political future.

The cynical scenario says that this is first and foremost a political process.
The GOP will do everything possible to maintain its filibuster in the Senate, and will use that filibuster to block any attempt to seat Franken until Coleman has officially conceded the election.
Coleman, for his part, is going all or nothing. He sees no political future for himself if he loses this election (and appears to be going broke even if he stays in the Senate).
So, the quid pro quo is that he has agreed to fall on his sword for the GOP and drag things out as long as possible.
In turn, some law firm with GOP ties has agreed to take him on (at several times his Senate salary) if/when he eventually loses.

I guess I gave up caring quite a few months ago. Buried deep under layers and layers of sadness and disappointment, however, I still wish I could count Jack Nelson-Pallmeyer as my senator. There clearly is no winner in this election, unless you count Mark Richie; he, at least, conducted an open and honorable recount. The entire state, in my opinion, lost big-time.

Excellent reporting and comments.

One point I haven't seen discussed is the abysmal job of lawyering Coleman's team did. It started on day-1 when they called to the stand a guy who admitted -- under direct examination without being prompted! -- that his girlfriend signed his application for an absentee ballot on his behalf. No lawyer worthy of the title would call a witness without knowing what he was going to say, especially on a critical element of the case. And this was merely a portent of what was to come, including the hapless Minneapolis election judge whose testimony twice was struck from the record because Coleman's lawyers failed to turn over evidence she had provided them.

But worse than its tactical incompetence, the Coleman team never offer a coherent theory of the case, not in the recount and not in the contest, that he had been cheated out of a plurality of votes. All they could do, and all they did do, was demonstrate that there are a lot of problems with the way the state handles absentee ballots. Those problems are real, but they never even tried as far as I could tell to prove that the problems systematically helped one candidate or another.

Then it dawned on me: Coleman and the Republicans never intended to win the legal battle. Their sole purpose is political and twofold. First, in the short term, they intend to deprive the Democrats of their 59th vote for as long as possible. The second, long-term goal is to delegitimize Frankin's election and deprive him of the opportunity to prove himself; they want him to go in under a cloud that they will keep reminding us of until 2014 when they hope to capitalize and replace him.

It's up to Al to prove himself now, and I hope he doesn't blow it.

"But where the Court failed was in its ability to act as a cohesive body (for at least this one decision), its use of murky language, and the decision by three of the justices to attack the Florida Supreme Court."

I think the Court issued the decision that it did because that was the decision that secured a majority. I believe a more clearly reasoned decision could have gone the other way, bringing on the constitutional crisis the court had intervened to prevent. I don't think the contending parties back then could have been persuaded by any reasoning, however clearly presented.

"Lori Swanson is now particularly vulnerable and currently being audited."

I'm pretty liberal so I wouldn't likely vote for Mr. Coleman in any event. I can't imagine that he'd be compelling for attorney general, or secretary of state ... both require an appreciate for living under the rule of law.

Mr. Coleman's legal choices - who represented him, the strategy used, the results - showed neither exceptional competence in matters legal, nor a respect for law above self-interest. The last thing we need is a Cheney-like, "The law is what I say it is" type in key state constitutional offices.

Plus, Mr. Coleman's debt problems will go away VERY SLOWLY if he takes a public sector gig - even the governor's salary won't help much on a 775,000 mortgage and election contest costs that include covering his adversary's bills.

Whom ever it was that speculated Mr. Coleman is headed for K Street - that analyst i think has Mr. Coleman's next career path pegged. He surely carried enough Republican water to get tucked into some featherbedding lobbyist group.

"If Coleman waits until day 10 to file his notice, I will consider that the first dilatory tactic. If he files in the first days of the window, will his critics concede that he has passed up a chance to delay the case further?"

Okay. But now that his lawyers say that mayybee _next_ week they might file this form,

...will Mr. Black concede that just possibly at this point it _is_ all about keeping Mr. Franken's vote out of the Senate for as long as possible?

(Mostly just being snarky, Mr. Black. I love your coverage and writing on this election and in the MinnPost in general.)

10-days to TELL whether Coleman is playing us --or not!
Now that the judges have ruled according to Minnesota LAW, Coleman is CLAIMING he is NOT involved in any GOP attempt to DELAY seating a democratic SENATOR. Coleman alleges this is about counting ALL THE VOTES -not political party posturing. (NICE, if it were TRUE).
THE DETERMINATION of his assertion can easily be fore-told DEPENDING on the LENGTH of time it takes for HIS MOTION to the MINNESOTA SUPREMES to be filed.
IF he (*his legal cabal) DRAGS ITS FEET and DELAYS their submission till the VERY LAST MOMENT ... IF THEY take THE FULL 10-DAYS [allowed by law to FILE their APPEAL] ... WE WILL KNOW FOR CERTAIN that THIS has ALL been just another rotten GOP political scam.
The truth will be: the LENGTH of time before their appeal IS FILED.
Once the truth of this fiasco is (finally) REVEALED, what's LEFT of the GOP can slink back into oblivion -- having been shown [YET AGAIN] that THE GOP EMPEROR has NO CLOTHES.
A fitting end ... should it take the full ten days for Coleman's cabal to file!
SIGNED: A doubting (former lifelong registered & voting REPUBLICAN) hoping to be proved wrong.

"If Coleman waits until day 10 to file his notice, I will consider that the first dilatory tactic. If he files in the first days of the window, will his critics concede that he has passed up a chance to delay the case further?"

I believe I have read that Mr. Gindsburg has stated that the notice of appeal may be delayed for awhile.

I suspect he wants the extra time to put together power point presentations, exhibits, so forth in order to put forth the most persuasive argument of his life.

But it is not intended for the MnSC. It is for Mr. Coleman.

He must call on his greatest skills to convince his client how hopeless an appeal will be.


"I think the Court issued the decision that it did because that was the decision that secured a majority."

I agree with you. But that was my point.

Had the justices been able to act as a cohesive body to reach a unanimous decision, and then submitted an opinion with the right tone and language, I believe the legacy of the Court would have been enhanced in the eyes of Americans. Instead, the Court today finds itself in exactly the opposite position.

"I believe a more clearly reasoned decision could have gone the other way, bringing on the constitutional crisis the court had intervened to prevent. I don't think the contending parties back then could have been persuaded by any reasoning, however clearly presented."

I suppose you could be right about this. But none of my remarks were intended to imply that the Court should have selected a different winner.

I have never considered that the contending parties might rebel against a decision by the nation's highest court. Perhaps we are fortunate that Gore took the approach he did in his acceptance of the Court's decision, and in the tone expressed in his concession speech. But I suspect he would have done the same if the Court had voted unanimously and submitted a better toned and reasoned opinion.

I have looking at this more from a point of view of the citizens of the nation - rather than concern about the reaction from the 2 campaigns.

“Minnesotans cannot be totally sure who would have won the election if all ballots had been judged against the proper legal standard.”

If only Mr. Black of MinPost would replace the words “cannot be totally sure” with “might wonder”, I would agree with this statement.

I have worked in the sciences most of my life, where the concept of 100% confidence (akin to the words “totally sure”) is an impossibility to achieve. In the scientific world we live in a world of probabilities, where statements are made such as “90% confident” using rigourous mathematical algorithms. (Please bear with me. I am going somewhere with all of this.)

And if we could use science and mathematics to evaluate certain aspects of the absentee ballots, I suspect we could develop a reasonable probability of who won the Minnesota Senate Race.

Now I know that a courtroom is not a scientific labratory, and that a judge might never agree to perform the experiments that I would propose. But if I were Mr. Coleman, I would pursue it with vigor, because it is the only valid and logical method available to him to ascertain with reasonable confindence that he might be the winner of the Minnesota Senate Race. Counting ballots that are known to be non-compliant with Minnesota statutes and court precedents is not a logical path to follow.

We only need to know two things: (1) How many absentee ballots within the accepted ballot count are erroneously accepted as ballots cast in accordance with Minnesota law. And (2) can we with reasonable condfidence determine what, if any, Mr. Franken’s winning margin may be over Mr. Coleman within the absentee ballots?

Data sources exist to provide the answer to (1) with a high degree of confidence and (2) with a reasonable degree of confidence.

The reason it is important to know what, if any, Mr. Franken’s winning margin may be over Mr. Coleman has to do with the random distribution of any erroneously accepted ballots. If Mr. Franken has a higher percentage of absentee ballot votes than Mr. Coleman, then he will also accumulate a higher percentage of erroneously accepted ballots. If the number of erroneous votes accumulated for Mr. Franken exceed the erroneous votes accumulated by Mr. Coleman by the current Contest winning margin (312 votes), then it can be truthfully stated that Mr. Franken’s win is based solely on the availability of erroneously accepted ballots.

And it turns out that the greater the absentee ballot winning margin of Mr. Franken over Mr. Coleman, the lesser the number needs to be of available erroneous absentee ballots within the pool of counted absentee ballots. And that is because the greater is Mr. Franken’s winning margin over Mr. Colenam, the greater is his proportion of erroneous ballots over those of Mr. Coleman.

The math reveals that if a split of Franken/Coleman/Other Candidates is 52/33/15 within the absentee ballots (a 19% margin of Mr. Franken over Mr. Coleman), then a minimum number of 1,643 erroneous ballots must be within the pool of accepted ballots in order to ascertain with high confidence that Mr. Coleman actually won the Senate race. And if the split is 49.5/35.5/15 (a 14% margin), then a minimum of 2,287 erroneous ballots are required. And if the split is 47/38/15 (a 9% margin), then a minimum of 3,468 erroneous ballots are required.

Post continued:

I doubt that there are as many as 3,468 erroneous ballots within the pool of counted absentee ballots.

But there might be. And the source of data is there to determine the answer.

The ballot applications and secrecy envelopes for about 280,000 counted absentee ballots should be available for scrutiny. They could be examined with the same rigor as that used by the Contest judges. But this time it would be inverted. It would be to demonstrate conclusively that the ballots were not cast in compliance with Minnesota state law.

Of course, all of this is a moot point if the Franken margin within the absentee ballots is non-existant or is very low. We have only one data sample to consider. The absentee ballots counted during the Recount and the Contest revealed, after normalization for geographical advantages and other minor considerations, that Mr. Franken achieved a margin of 19% over Mr. Coleman.

But the sample size of ballots (1,284) is an extremely small portion (0.46%) of the total pool of 280,000 counted ballots. It is much too small to extrapolate over the total count of ballots with any reasonable confidence.

But there is another source of ballots available. If the total number of rejected ballots (about 10,650) were evaluated to determine winning margins, then the sample size would grow to about 4.3% and the confidence in the extrapolation would grow to attain reasonable confidence. But it should be clear that the rejected ballots are evaluated only for purposes of attaining data – not to count votes.

So the first order of business would be to scrutinize the ballot applications and secrecy envelopes of the counted absentee ballots. And if there are insufficient erroneous ballots cast (less than 1,643), there is really no sense in going any further. But we would have learned a great deal of what we really would like to know (including more knowledge of the Minnesota electoral process)!

But if more than 1,643 ballots are deemed erroneous, then the pool of rejected ballots should be evaluated to determine margins that could be extrapolated over the total population of ballots.

Now all of my data postings here have thus far been non-partisan, and this post is no different. But I will candidly admit that I do have a partisan preference. I have a pesonal bias in favor of Mr. Franken. But I have an even stronger bias to know the truth, and to do what is fair and just. But isn’t that really true of most people – maybe especially Minnesotans?

So please change directions Mr. Coleman. Make your case one of searching for the truth – not one of attempting to count ballots known to be non-compliant with Minnesota law.

And if you lose because the data reveals you lost, everyone will at least believe that you lost while pursuing the moral highground. And it would completely obliterate the concern that many have that you are delaying everything just for personal gain. And if the data shows you should be the winner, well that wouldn’t really bother you – would it?