Nonprofit, nonpartisan journalism. Supported by readers.


Senate election appeal: Coleman lawyer says election system is broken; appeal a few days off yet

It’ll be a few days before Norm Coleman files his appeal to the Minnesota Supreme Court, probably not before next week.

And the three-judge election contest judges were “very defensive” about Minnesota’s electoral system and spent too much time patting themselves and the state on the back when they should have been more concerned about enfranchising as many as 4,400 more voters.

So said Ben Ginsberg, Coleman’s legal spokesman, in a conference call with reporters this morning.

It was the Coleman side’s first full reaction to the sweeping verdict handed down Monday night that concluded with the judges declaring Al Franken is entitled to the election certificate to be Minnesota’s next U.S. Senator.

Ginsberg reiterated the major themes of the upcoming appeal:
    • The three judges allowed “illegal ballots” in the count and, by not following state election law uniformly, election officials statewide violated the “equal protection” rights of thousands of voters;
    • The panel, in its verdict, allowed “due process” violations because of the way “rules” were changed to count ballots between Election Day and during the trial.

On the key issue of not counting more absentee ballots that Coleman believes qualify to be counted, Ginsberg criticized Judges Elizabeth Hayden, Kurt Marben and Denise Reilly.

“We feel that they have misunderstood a number of the issues, as well as what’s at stake in this case,” Ginsberg said.

As it attempted to prove during the seven-week-long trial, the Coleman side believes that because similar ballots were opened (or not opened) — and counted  (or not counted) — differently in many counties that was a violation of the federal and state equal protection laws.

The judges wrote in their opinion Monday that while some votes were handled differently in different counties and precincts, “Equal protection … cannot be interpreted as raising every error in an election to the level of a constitutional violation … Equal protection does not guarantee a perfect election … Equal protection does not demand rigid sameness.”

Besides, the judges said, any issues of un-counted votes would not have changed the outcome of the election.

“We were puzzled by that language,” Ginsberg said, noting the margin of 312 that Franken holds is small enough to be overturned, if and when more ballots are counted.

Mostly, Ginsberg highlighted a position he began to assert late in the trial when it appeared Coleman was bound to lose. Ginsberg’s view: The three judges were more intent on defending Minnesota’s electoral system than in isolating the system’s flaws and addressing them in this case.

He said today: “If you read this opinion, the court was very defensive of the Minnesota system. The purpose of the contest is to be protective of the rights of voters …In spending so much time kind of patting themselves on the back about the Minnesota system the court, I think, kind of missed what the real picture is.”

He said a statewide standard didn’t, in practical terms, exist because local election officials view the pre-Election Day training by the secretary of state’s training like a “game of telephone … Everybody hears what’s said and applies it a little bit differently. That difference in applying … is what creates the constitutional and practical infirmity.”

Of the flaws in Minnesota’s and the nation’s electoral system, Ginsberg said: “This really is a clarion call that the system of election administration in this country is broken. And there is a great tendency to try and keep the genie in the bottle in these cases … To sweep it all under the rug and pretend it doesn’t matter … In this case, in this election, where it was this close, it absolutely does matter … You cannot know who won this election without coming to grips with the equal protection issue … This problem is never going to get fixed in this country if places like Minnesota, which are the best in the country, sweep it under the rug instead of dealing with what really is a serious problem.”

As for the timing of the Coleman’s notice of appeal, “I would be surprised if it’s before next week,” Ginsberg said. “We’ll take time to make sure we review [the panel’s opinion.]”

Coleman had said earlier his legal team wouldn’t use up the full 10 days the statute allows to file an appeal. But, of course, the more time Coleman takes, the longer Franken’s wait to be sworn in … assuming the Minnesota Supreme Court affirms the three-judge panel’s ruling.

No matter what the legal issues, the number is clear: After two months of a trial and the introduction of thousands of potential ballots for consideration, Franken is ahead by 312 votes, all deemed legal by the three-judge panel.

Comments (5)

  1. Submitted by Jeff Kline on 04/14/2009 - 03:06 pm.

    What amazes me it the blatant evidence of the balloting issues and the faulty handling of these things throughout the whole cycle. What amazes me even more is the seemingly apathetic attitude on all this issue given what most everyone has seen and heard.

    I for one want to see Mr. Coleman take this through all the legal options possible. There is just too much wrong with it. What makes me a bit angry is the general attitude of folks that now Mr. Franken has clearly gotten a visible lead, everyone wants to quickly hush this up and get Governor Pawlenty to sign the damned papers already. I guess when your a democrat, you don’t want anything else coming along to upset your apple cart. After all; Minnesota has a long tradition of working class folks who just coincidentally vote democratic. But we really need to make sure this was indeed right from the start.

  2. Submitted by Greg Kapphahn on 04/14/2009 - 07:43 pm.

    Perhaps what we’ll discover in the end, is what “equal protection” really means (the aberrant interpretation in Bush V Core cast aside, of course, as even the SCOTUS proclaimed in their own “not-to-be-used as a precedent” ruling)?

    It seems to me it originally was used in voting cases to rule out the systematic application of rules by election authorities within particular jurisdictions to make it more difficult for people who lived in the wrong neighborhood, or had the wrong skin color, the wrong religion, or in some other way could be identified as a “class” of voters whose voting ability those officials desired to limit.

    Based on that idea, it’s hard for me to believe that the officials handling absentee ballots in Carver County, for instance, since they applied more rigid interpretations of the rules than did officials in Hennepin county, were seeking to limit the voting ability of the people of Carver County in general nor of those in Carver County who were voting by absentee ballot. Surely there was no plot on the part of voting officials to ensure that the voters of Carver County, as a “class” had their voting ability limited in favor of voters in Hennepin County. If so, it needs to be investigated and proved (which it was not and not).

    Such a demonstrable plot would clearly lend solid basis for an equal protection claim as would systematic actions within a precinct or county to make it more difficult for a particular, identifiable class of people to vote.

    Lacking that, what we’re dealing with is the differences in human beings’ interpretation and application of rules, not with any surreptitious intent but simply as one of the side effects of being human. Perhaps enough to leave us scratching our heads and determined to offer better training in the future, but lacking proof of some sinister plot, not enough for a true “equal protection” claim.

  3. Submitted by Howard Miller on 04/14/2009 - 09:56 pm.

    Coleman’s lawyer Ginsberg proved none of his client’s claims before the court. He gets shut out legally, so he keeps trashing judges, and expands the commentary to suggest nation-wide problems …

    is THAT where republicans are headed in their thinking? litigate every election, hassle every opposition candidate with any means available?

    Mr. Ginsberg’s disrespect toward the Court and it’s authority should be an issue if there’s further judicial review in the cards.

  4. Submitted by Hiram Foster on 04/15/2009 - 06:38 am.

    “What makes me a bit angry is the general attitude of folks that now Mr. Franken has clearly gotten a visible lead, everyone wants to quickly hush this up and get Governor Pawlenty to sign the damned papers already.”

    It’s way too late for quick.

    Democrats want the candidate who has the most votes to win. That’s what happens in a democracy. I respect Sen. Coleman’s right to contest this election. He has the right to appeal to the Minnesota Supreme Court, and if he genuinely feels he has a reasonable chance of winning there, he should exercise it. He owes that to his supporters, and to all Minnesotans. But at some point this process has to come to an end, and a decision must be reached. Whatever the outcome of that decision, I hope it will be accepted by all of us. I know that I will.

  5. Submitted by Don Medal on 04/15/2009 - 07:10 am.

    stalling! “we’re going to file quicker than 10 days, I can assure you,” Coleman said Wednesday morning on “Brian and the Judge” on Fox News Radio.

Leave a Reply