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Coleman, Franken face the Supremes, later, calmer post

(If you read the shorter, hastier, breathless version of this post earlier today, skip down to the subhead: The new stuff starts there.)

"We shall take this matter under advisement. An opinion will be forthcoming. We are adjourned."

Thus spake acting Chief Justice Alan Page at the conclusion of today's oral arguments in the Coleman/Franken election/recount/contest/appeal case. And I will boldly predict that an opinion will indeed be forthcoming.

I'll give you my reaction/analysis to oral arguments, but first, a big fat disclaimer: The justices don't take positions in these proceedings, they ask questions. It's dangerous to infer from their questions which way they are leaning, but I'm going to do it anyway. It also borders on unfair to start with preconceptions about which way a given justice many lean in a case like this, based on what's know about them politically or even juridically. Lastly, MinnPost teammate Jay Weiner is also typing away as I write this, and our pieces will probably overlap.

But I'm going to blow past those cautions and try to analyze what I heard without worrying about being presumptuous, politically incorrect, rude or redundant with what Jay will write.

  1. The questions to Coleman attorney Joe Friedberg were significantly more skeptical and more aggressive and covered a wider range of problems with that side of the case.  Anyone who had to guess which way the court will rule based on this morning's exchanges would probably say that it looks bad for Coleman.
  2. Because of the two recusals, there are five justices participating. I'm sure they will try to reach unanimty and I won't be surprised if they succeed. But if not, it takes three votes to win. Justice Page and Justice Paul Anderson seemed to ask the most questions and seemed to challenge Friedberg the hardest. They were considered the likeliest two justices to favor Franken's side of the case, and their questions seemed to reinforce that impression. More details below, but in the above-declared spirit of presumption, I would be surprised if Franken does not start out with those two votes heading into the final discussions by the court.
  3. Justice Helen Meyer, a Jesse Ventura appointee, was considered a potential swing vote heading into today. She spoke little and I make no inferences as to what she is thinking.
  4. Justices Lorie Gildea and Christopher Dietzen, both Pawlenty appointees, have the clearest Republican credentials of the five. If I'm right about Page and Anderson, Coleman would need the votes of these two, plus Meyer. Gildea pursued skeptical lines of questioning with both sides, which made it difficult to sense what she may be thinking. But Dietzen, who also asked questions of both sides, seemed very troubled by technical problems in Coleman's case that could easily be used to reject the appeal without reaching the big constitutional arguments. I'll give a few details on that below. And I repeat my caution above about inferring a judge's lean from the questions he asks. But no one who was watching this morning could help but notice Dietzen's implications about shortcoming's in Coleman's evidence. If Dietzen -- whose pre-judicial career has the strongest Republican flavor -- isn't voting and arguing for Coleman, the former Senator's goose is cooked.
  5. The justices didn't show that much interest in what is presumed to be Coleman's biggest and best argument: That variations in the treatment of absentee ballots across county lines constitute a violation of the U.S. Constitution's Equal Protection Clause. Their interest seemed closer to the ground and to state law and specifically on whether the ThreeJudge election contest court correctly concluded that Minnesota is a state that requires strict compliance with all the requirements of the law governing absentee voting. And they asked no question that implied any of them thought the trial court got it wrong.

The New Stuff Starts Here

The Supreme Court has the authority to overrule the three-judges on their interpretation of the law. But to discard any of the findings of fact reached by TheThree, they need to rule that the trial court abused its discretion. The trial court ruled that Coleman had not met his burden of proof to show that problems with the election may have resulted in the wrong candidate being declared the winner. The trial court found that the errors were relatively minor. Gildea specifically challenged Friedberg: How can we reach a finding that the trial court abused its discretion?

Friedberg did have an answer. If Coleman didn't meet his burden, it's because the trial court wouldn't let Team Coleman put in enough evidence about the county-by-county variations. But both Gildea and Dietzen seemed skeptical that Coleman had done enough to even try to meet the burden of proof. Dietzen was very critical of the document, called an offer of proof, that Team Coleman submitted in an effort to show that disparities cost Coleman the election:"I’ve never seen an offer of proof like this," he said. It doesn’t say who the witnesses will be. Why is this not inadequate? he asked. We don’t have admissible evidence to show whether you’ve met your burden.

Justice Meyer was bothered by a statement in Coleman's brief that said the "overwhelming majority" of Minnesota's counties used "substantial compliance" (rather than "strict compliance") standards in assessing absentee ballot envelopes. Where's the evidence? she asked.

Friedberg talked about big disparities between practices in Minneapolis versus Carver County, a familiar refrain. But Gildea was being much more specific. Your brief says the overwhelming majority, but you didn't call election officials from the majority of counties.

The fact that these challenges come from Meyer, Gildea and Dietzen, who would be expected to be Coleman's likeliest friends on the court if he has any friends there, is especially troubling for Coleman supporters.

The "where you sleep" argument

Friedberg relied heavily on the argument that your ability to have your absentee ballot should not depend on "where you sleep," meaning whether you live in a strict or a loose county.

Page tormented Friedberg with a couple of arguments that team Franken has been emphasizing for months. How can a voter, who failed to follow the statutory requirements for having his absentee ballot counted, be said to be disenfranched. The voter simply didn't follow the law.To argue that a voter who violated the law should have his vote counted because another voter who violated the law had his vote counted is like the argument of a driver who gets a speeding ticket: "The cars in front of me were speeding, they got away. Why do I get the ticket?" Page said.

Friedberg replied these voters didn't break the law, they complied "substantialy," if not strictly. The Minnesota tradition is that if a voter makes a good faith attempt to vote and commits no fraud, every effort should be made to count the vote.

That runs up against a string of precedents in which Minnesota courts have said that voting by absentee ballots is more like a privilege than a right, and that the Legislature has set up strict requirements for absentee voters in order to prevent fraud. Anderson cited language from some of those rulings and confessed:"I’m having trouble with your assertion that we’re a substantial compliance state."

Franken's turn in the hotbox

Franken lawyer Marc Elias faced skeptical questions too, but not as many and not as skeptical.

Gildea said the job of the state was to ascertain who got the most legally cast votes. If there's evidence that improper votes are part of the count, how can Minnesota be sure who got the most properly cast votes?

Elias' replies were on the technical side. Coleman failed to introduce enough ballots, with proof that they met all the requirements, to overturn the results. (I'm not sure there is a non-teachnical answer to this. It is basically impossible to know who would have won the election if a single standard -- whether high or low -- had been applied to every absentee ballot.)

But this is a legal case and Coleman has the burden of proving that the previous rulings, that Franken got the most votes, is wrong. Elias' argues that Coleman has only theories, not evidence.

Gildea, after pressing him on it, summarized Elias' argument thus: "It was his burden to prove it. He didn’t prove it. He can’t stand here today and speculate." Elias glady accepted that version.

Anderson and Dietzen both pursued a line of what could be called pro-Coleman questions. Relying on Minnesota precedents and statutory language, Franken argues that if Coleman wanted to raise challenges to the acceptance or rejection of absentee ballots, the time to do it at the polling places on Election Day, not in a post-election legal case. But testimony in this case has shown that it is virtually impossible to challenge the ballots on or before Election Day.

Under Anderson's questioning, Elias didn't really have a reply to that. And Dietzen asked Friedberg on the last round whether Coleman could have made those challenges sooner, giving Friedberg a chance to answer: "absolutely, unequivocally, 100 percent, No."

In the hallway outside the courtroom, both teams held brief press conferences. Coleman himself spoke at his, and, when asked whether he would appeal the case further if he loses, was non-committal. Friedberg, who, spoke after, turned this into an act of chivarly, stating that threatening to appeal one court's ruling to a higher court, before the ruling comes down, is "a form of intimidation" that he never does and no one should ever do.

There was, by the way, no explicit discussion during the oral arguments of Franken's request that in its ruling the MN Supremes should directly order Gov. Pawlenty to issue an election certificate to Franken. Pawlenty has tap-danced around what he might do, but has said he would follow court orders.

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Comments (7)

We are all so steeped in this that we start to hear what we are predisposed to expect. I agree that a remand to the 3 judge panel will not be the result. (ie Coleman will not get to count 4000 more votes.) That leaves a ruling predicated on failure of proof or something else. The criticism of the shortcuts in the Coleman presentation is really a little disingenuous. This is an expedited proceeding to determine an election. Once the panel indicated their strict compliance standard, would it have been reasonable to call (or make an offer of proof embracing) 4000 witnesses? I think that the sampling they attempted was a good faith effort to paint the problem. That leaves me to wonder about those questions concerning all the "illegal" inclusions in the reported totals. Justice Page directly questioned Elias about justiciability. I think abstention in favor of the Senate is possible. There is also a defensible finding that the recipient of the most votes legally cast is not judicially ascertainable based on the inclusion of thousands of non-compliant votes counted on election night and now not traceable.

The Justices are not likely to set a precedent that would apply to virtually all elections past, present and future in the State of Minnesota.
The burden is still on Norm Coleman to present proof that THIS election was fatally flawed in the context of usual practice in Minnesota.
I.e.; that things happened in THIS election that do not normally happen in elections in this state.

I don't think criticisms of the Coleman evidentiary strategy are disingenuous. It appears to me that Coleman was unprepared for an election contest, perhaps because he felt that he would win the election, and after election night that he would win the recount. Whatever the circumstances, its clear there was no effective strategy to identify what evidence would be needed, what avenues were available to collect it, and to collect the evidence in a form that would later be admissible. Perhaps Coleman thought he needed to suppress votes to stay on top (he didn't want to make evidence for Franken), and only too late realized that he'd actually have to prove up votes or his case would collapse. There has been this aura of "reasonable doubt" in Coleman's attitude and argument toward evidence, when he really has the burden of both production and persuasion on every element of his claim for relief. This is a common blunder in complex civil litigation where time pressures are high. If Mr. Friedberg is correct that after February 15 Coleman's case shifted to the Supreme Court, the team should have been compulsive about preparing and entering comprehensive offers of proof for that Court. After all, this was the most expensive Senatorial campaign ever. There is going to be a presumption that the resources will be made available and deployed to bring the evidence to Court in the expedited time frame provided by statute. Finally, Coleman could have ferreted out the Election Court's standard on what constitutes an admissible ballot with a motion in limne filed the day they brought the contest. Coleman made a fatal assumption that he only needed evidence that an offered reason for rejecting a ballot was incorrect, and that's not the way civil litigation works.

Erich Russell: I see your point but Coleman did an awful lot of wheel spinning after the Feb. 13 massacre.

Rick Hasen wrote:
"The state Supreme Court's existing precedent in terms of treating absentee ballots strictly as a matter of fraud-prevention favors Franken. A change in that standard now . . . would create a due process argument for Franken by constituting a change in the rules of the election after the fact.
Even if the court accepted some of Coleman's arguments in the abstract---such as that there were some votes illegally counted by some jurisdictions (or alternatively, some ballots accepted under a looser "substantial compliance" standard)-- that doesn't mean Coleman would win his case. He'd have to show that there were enough problems to make a difference in the outcome of the election (a point the Justices expressed a great deal of skepticism about, in their discussion of the failure of the offer of proof)."

Did Coleman have enough time to offer 320 ballots/witnesses? Would the ECC have given him the time (they gave him seven weeks - didn't Franken's team offer 150 plus in their week of putting on evidence)? Wouldn't that have given Coleman proof that the election results might have been compromised?

"Friedberg, who, spoke after, turned this into an act of chivarly, stating that threatening to appeal one court's ruling to a higher court, before the ruling comes down, is "a form of intimidation" that he never does and no one should ever do."

Could have sworn that Mr. Ginsberg, part of Coleman's legal team, did exactly what no one should do, according to Mr. Friedberg, during the election contest court proceedings.

Eric - excellent reporting and analysis by you and Jay both. And I'm glad there was overlap between the two. After all, isn't that why we always want two or more sources for a story? It's good to see that the two of you saw it basically the same.

My view of this is that the whole Case is and was never about the disenfranchisement of even one voter. I think the Justice's know that the suit was brought forth in bad faith. Eventually, it would arrive at the point where the Supreme Court would get to deal with it. Rather than refusing to hear the case, the Supreme Court used the Oral Argument time to let the Appellant know what they thought of the case that Coleman used as an excuse for not conceding the election to Franken, and the GOP supported to keep Franken otherwise engaged rather than being sworn-in and seated to begin his term in the Senate.
The tactic worked for Coleman. The ploy kept Franken wrapped-up in Court. The delay in seating Franken worked like a charm for the GOP. No Democratic vote to hinder the way the Republicans shaped the legislation during the transition of Government.
For both, the time has run out.
We heard the Justice say: "You have no proof" and, "I have never seen an offer of proof like this!"
That is what we heard them say. What they intended for Coleman to hear with those remarks spells-out what the prudent man would say given all that is known about the Election, Contest and Appeal.
"Mister, you have some nerve presenting yourself and this miserable excuse for a Case to this Court. You stand there having proved nothing. You request what is not provided for in Law. This is the sorriest excuse for an Appeal to this Court we have ever seen. Take this away.
The political stench of this matter is making is making everyone whom this case affected violenty ill. Shame on you. Minnesota is NOT a Substantially Compliant State no matter how loudly you try to convince the People that it is"
Get out and don't come back.