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Senate trial appeal: Coleman spokesman lays out possible ‘remedies’ for Supreme Court to consider

Colleague Eric Black is eruditely producing instant analysis of Norm Coleman’s appeals brief, but we wanted you to read a few excerpts of Coleman legal spokesman Ben Ginsberg’s conference call news briefing today.

Meanwhile, Loyola (Calif.) Law School elections guru Rick Hasen has already weighed in, saying Coleman has an uphill fight on his arguments, but they are not frivolous and require serious review by the state Supreme Court.

Ginsberg laid out the details of the brief, but here are a couple of highlights of his conference call with journalists.

He was asked about the remedies Coleman is seeking. They include: the “proportionate reduction” of Franken and Coleman votes from absentee ballots in precincts where ballots were counted in ways that Coleman’s side believes were illegal; or “a declaration that the winner of the election cannot be known.”

Said Ginsberg: “That’s the conundrum, which is that if the trial-court strict compliance standard is imposed … there are illegal votes in the Election Day count.”

That is, Coleman’s view has been that the three-judge panel set up ballot standards that – had they been used on Election Day – would have rendered illegal many votes counted on Election Day.

One way to get around that would be to proportionately reduce tallies for each candidate by precinct. (This idea was raised in arguments during the trial, and Judges Elizabeth Hayden, Kurt Marben and Denise Reilly didn’t buy it.)

Thus, if Franken won a precinct 60-40, if the Supreme Court ruled in Coleman’s favor, Franken would presumably lose 60 percent of the absentee-cast votes in that precinct.

Exactly how that would be done is somewhat of another conundrum. And when the Franken side files its brief by May 11, you can be sure it will try to shoot down the proportionate reduction method as unworkable and unprecedented in such a recount.

(By the way, Franken’s spokespeople and lawyers aren’t responding to the Coleman brief today; they’ll wait to do that legally in their own brief.)

Ginsberg said Coleman’s first preference – as it has been since the start of the trial – is to have the Supreme Court order the trial court to examine and count about 4,800 ballots. These are ballots that the trial court already rejected for all sorts of reasons.

Why does he expect the Supreme Court to rule differently?

Well, Ginsberg said, the trial court didn’t tackle the equal protection argument fully, and that is at the heart of the Coleman appeal. In fact, the three judges did address it but dismissed it.

He also said the three judges didn’t want to ponder the implications of their sweeping Feb. 13 ruling, which seems to have created illegal votes on Election Day. It’s a ruling that Coleman and Ginsberg have been fighting ever since it was handed down and reduced the universe of votes to be counted during the trial.

“The Supreme Court is the ultimate word in Minnesota on … the scope of what can be looked at,” Ginsberg said. “Therefore, it is really a fresh look that the Supreme Court takes at these issues.”

In any event, we are headed toward a June 1 oral argument and a decision sometime after that. When? You can be the judge of that.

But if Coleman gets his way here and the case is sent back to the trial court, all bets are off on the conclusion of this saga.

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Comments (1)

  1. Submitted by Greg Kapphahn on 05/01/2009 - 09:37 am.

    Once again the Coleman team trots out the dubious claim that amounts to this argument: if the local municipal liquor store sells alcohol to one underaged individual, it must then sell an equal amount to every underaged individual, otherwise all those other teenagers have an equal protection claim against the city… or if one car successfully navigates a route at 90 mph without being ticketed, no one else can be ticketed on that route for speeding. In other words, anytime anyone flouts the law and gets away with it (i.e. has their absentee ballot counted when, perhaps, it should not have been), everyone else MUST be allowed to flout the law in exactly the same way in order that we all be treated “equally,” even where that treatment is a clear violation of state law. This is of course hogwash and they know it, but they’ll continue to drag the case out as long as possible, especially now that their ability to filibuster an Obama Supreme Court nomination is at stake.

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