Franken Camp Claims Victory Of Their Own In Minnesota Supremes' Decision
Here's the Franken campaign's response to today's state Supreme Court ruling on the issue of wrongly-rejected absentee ballots, presenting a different interpretation from what we had earlier. They say the court did go their way on a very key point -- that improperly-rejected absentee ballots should in some way be counted:
SAINT PAUL [12/18/08] - Franken lead attorney Marc Elias:"Today, the Supreme Court joined the ranks of the state's top elections official, the state's top law enforcement officer, and the state canvassing board in acknowledging that Minnesotans were wrongly disenfranchised by the improper rejection of their absentee ballots, and that those ballots must be included in the count.
"We are pleased that the Supreme Court has rejected Norm Coleman's attempt to win re-election by throwing out the lawful votes of Minnesotans who did everything right. And we are pleased that these votes will be counted.
"In its order, the Court laid out a process by which those votes will be counted. We have said all along that what matters is not the manner in which the franchise is restored to these voters - whether it be at the county canvassing board level, at the state canvassing board level, in a district or state court, or in the U.S. Senate - but rather the result: an election in which every lawful vote is counted.
"Therefore, we look forward to initiating this process as soon as possible. This is not a hypothetical matter. We have identified over 150 individual voters whose absentee ballots were improperly rejected, and we are prepared to produce affidavits and other supporting documentation to prove it. And counties across the state have identified hundreds, perhaps thousands, of other voters whose ballots weren't rejected for any legal reason.
"Now it is up to the Coleman campaign to drop its longstanding contention that these ballots should be thrown out and work with us as the Court has ordered to ensure that every lawful vote is counted."
In theory, the majority opinion did a lot of good for Franken by requiring some kind of process to count votes. But in practice, this could turn out to net very few new votes for the reason that they required the consent of both campaigns to any such votes being counted. And that means the Coleman campaign, which vociferously opposes counting these votes at all, will have veto power over any single vote getting counted.
This problem was pretty clearly laid out in the dissenting opinion from Justice Alan Page (the former Minnesota Vikings football star):
The court's order may seek the peaceful way out by asking the campaigns to agree on improperly rejected ballots. But the order does not guarantee that the candidates and their political parties will agree on any rejected ballot. Instead, the court's order will arbitrarily disqualify enfranchised voters on the whim of the candidates and political parties without the benefit of the legislatively authorized procedures in section 204C.39.
The court's opinion does threaten sanctions against the campaigns if they act in bad faith, but you can bet the Coleman campaign will be giving only so much consent as they think they can get away with.
Excellent dissent.
December 18, 2008 8:37 PM | Reply | Permalink
The "concurrence and dissent" by Justice Anderson (pps 11ff) is quite detailed too.
We should also remember that two judges recused themselves, leaving the court rather weakened. Anyone smell a SCOTUS appeal in the air?
December 18, 2008 9:32 PM | Reply | Permalink
of the estimated 1600 '5' ballots, how many get counted by the end of the year?
put me down for less than 400.
December 18, 2008 9:13 PM | Reply | Permalink
It seems the court may have opened up a can of worms. The simple decision would have been to order the count/recount of any absentee ballots which had been rejected but which when examined did not fit any of the four formal criteria for rejection. That is, they were in effect "clerical errors" -- the court should have specifically ruled that ALL of these 5th pile ballots be counted, no quibbling, at all voting locations.
The complicated part of the ruling seems to be that the court might allow OTHER ballots to be counted. That is, it might allow ballots from piles 1-4 to be counted if the two parties et al can agree on a consistent criterion. This could include such defects as: Missing signature. If a voter comes in, identifies him/herself, and signs in the correct place, then the ballot might become countable. This could be far more than the 1600 est. ballots which should be in pile 5.
Maybe someone who has carefully read the decision can confirm or refute my interpretation.
December 18, 2008 9:14 PM | Reply | Permalink
The order specifically says that only those absentee ballots "that were not rejected on any of the four bases stated in Minn. Stat. 203B.12 or in Minn. Stat. 203B.24 for overseas absentee ballots".
I don't think they'll be re-opening ballots rejected for valid (statutory) reasons.
December 19, 2008 8:56 AM | Reply | Permalink
By the time they're finished the recount, Franken will be in the lead. At that point Coleman has nothing to gain by foot-dragging on the absentee ballots. Franken could just as easily say "Fine. Don't count the absentee ballots. I win!"
December 19, 2008 12:17 AM | Reply | Permalink
It's a trap Norm! It's a trap! They want you to continue being a dick, crapping all over the process so you look even more petulant and Franken looks even more dignified so in the end when the Supreme Court does sanction you it won't be any more of a surprise or disappointment to Minnesotans than your defeat! They're trying to make you make yourself look like a loser. Don't fall for it. You've revealed far too much of the "real" Norm as it is.
Save your money. You're gonna need it when you're indicted. Now's the time to claim the process is corrupted, smear everybody with allegations and insinuations and say it's obvious they won't let you win. Then quit. Tell them they're not gonna have Norm Coleman to kick around anymore. You'll live to fight another day. We'll never forget you Norm, we'll never forget you! For instance I'm putting an 8x10 glossy of you up behind the register for everybody to see with a sign that reads "don't accept personal checks from this man". Be sure to write if you get work.
December 19, 2008 12:58 AM | Reply | Permalink
What the fleeble and nerts? This is incoherent. Dang it, where did this whole notion that counties can decide what they want to count as a vote, even in a national election? This seems to be taking states rights, and now county rights, to an absurd length. Voting and tabulating of voting should be the one area that does not allow rules to be made up on the fly.
For a national election, a national standard should be constructed and applied for voting and tabulation (and it better include ballot security, auditing, paper record, and redundancies so votes are not "lost" or switched). State races can follow state standards and county races can follow a consistent county standard. This is a state race with clearly defined state rules for counting ballots (at least in terms of what rejects absentee ballots), so use those state statutes and get on with it. What are the judges trying to do, take a nod from Harry afReid and Schmancy Pelosi, and decide that the best way to decide is to defer to some soupy bipartisan gentleman's agreement in a partisan war? What are these guys smoking?
December 19, 2008 3:55 AM | Reply | Permalink
In some ways, after thinking it over, this MN Supreme decision could prove to be pure genius -- in essence it forces the Coleman and Franken camps to be realists. One or the other (and given the current state of the count it probably is Coleman) will need to pull back and admit the election was lost by a very narrow margin and withdraw with a mite of honor -- and counting those wrongly excluded absentee ballots is an open road to that climb down. Let the wrongly excluded voters decide the case. They voted as honest and honorable voters, they are not party operatives or hired guns for either camp. The decision respects process as established in statute law as it currently exists, and at least one function of the court is to sustain the legislative intent in making the law.
But it is also interesting given Minnesota's Political Culture, and where it has been in recent years. As has been the case nationally, there has been a real push in Republican circles to heighten rigid political identity and "follow the leader" pressures within the party. For the most part, those Republicans on the Court are quite conservative -- but they are not part of the radical right movements. They are not Sarah Palin type Republicans -- they are not part of that gang that did a genocide on moderate Republicans who, for instance, voted to override the Governor's veto of a small increase in the gas tax so as to catch up with repairing bridges in the wake of the 35W Bridge Collapse. (The moderates who voted for override were essentially thrown out of the Republican Party this election, denied endorsement and funding, by the operatives in the Rep. Party.) The current Chair of the State Party is the former head of the Christian Coalition -- and pretty much runs the party in a rigid ideological manner. Forcing co-operation in the face of sanctions in this instance is a nice slap in the face to that Republican Faction. Whether it will work or not is quite another question. While Norm's roots were in the conservative side of the DFL, and some of his sponsors locally in his movement to the Republican Party were Moderates who had been read out of the Party -- he has since become the darling of the right, what with his Rove associations and all. Thus on the cultural level, this decision can be interpreted as a refusal to blindly follow a troublesome faction further down a rat hole.
Another indication of this...when if first became clear on the day after the Election that a Recount was mandatory, Coleman first announced his Recount lead Attorney would be Tom Hefflefinger, former USAG who was on the Rove-Meyers firing list for a time. Within a day or so, Hefflefinger announced he was not available, and withdrew his name. Interesting -- TH is one of the most prominent State Republicans, from a family with five generations in the Republican Party. In otherwords, the establishment backed off Coleman's obvious need for both skill and above all, legitimacy. Anyhow, that is my reading of the tea leaves that have not been covered up by blizzard drifts.
December 19, 2008 8:30 AM | Reply | Permalink
Sara a lot of those absentee voters are party operatives, hired guns and volunteers for both camps who worked on the election and didn't want to take time off to vote that day.
December 19, 2008 12:09 PM | Reply | Permalink
But I forgot to add thanks for the information. I'd like to learn more about the players up there in this drama.
December 19, 2008 12:22 PM | Reply | Permalink
In some ways, after thinking it over, this MN Supreme decision could prove to be pure genius -- in essence it forces the Coleman and Franken camps to be realists. One or the other (and given the current state of the count it probably is Coleman) will need to pull back and admit the election was lost by a very narrow margin and withdraw with a mite of honor -- and counting those wrongly excluded absentee ballots is an open road to that climb down. Let the wrongly excluded voters decide the case. They voted as honest and honorable voters, they are not party operatives or hired guns for either camp. The decision respects process as established in statute law as it currently exists, and at least one function of the court is to sustain the legislative intent in making the law.
But it is also interesting given Minnesota's Political Culture, and where it has been in recent years. As has been the case nationally, there has been a real push in Republican circles to heighten rigid political identity and "follow the leader" pressures within the party. For the most part, those Republicans on the Court are quite conservative -- but they are not part of the radical right movements. They are not Sarah Palin type Republicans -- they are not part of that gang that did a genocide on moderate Republicans who, for instance, voted to override the Governor's veto of a small increase in the gas tax so as to catch up with repairing bridges in the wake of the 35W Bridge Collapse. (The moderates who voted for override were essentially thrown out of the Republican Party this election, denied endorsement and funding, by the operatives in the Rep. Party.) The current Chair of the State Party is the former head of the Christian Coalition -- and pretty much runs the party in a rigid ideological manner. Forcing co-operation in the face of sanctions in this instance is a nice slap in the face to that Republican Faction. Whether it will work or not is quite another question. While Norm's roots were in the conservative side of the DFL, and some of his sponsors locally in his movement to the Republican Party were Moderates who had been read out of the Party -- he has since become the darling of the right, what with his Rove associations and all. Thus on the cultural level, this decision can be interpreted as a refusal to blindly follow a troublesome faction further down a rat hole.
Another indication of this...when if first became clear on the day after the Election that a Recount was mandatory, Coleman first announced his Recount lead Attorney would be Tom Hefflefinger, former USAG who was on the Rove-Meyers firing list for a time. Within a day or so, Hefflefinger announced he was not available, and withdrew his name. Interesting -- TH is one of the most prominent State Republicans, from a family with five generations in the Republican Party. In otherwords, the establishment backed off Coleman's obvious need for both skill and above all, legitimacy. Anyhow, that is my reading of the tea leaves that have not been covered up by blizzard drifts.
December 19, 2008 8:35 AM | Reply | Permalink
The actual order says that the attorneys must agree on a process, not on the individual ballots to count:
(emphasis mine)The order also threatens to sanction the attorneys, not the campaigns. The penalties aren't huge, but it's still a quite a black eye.
December 19, 2008 8:52 AM | Reply | Permalink
It requires both campaigns to agree to BOTH the process and the individual ballots.
You quoted the process part.
The individual ballots part is:
======================================
http://www.mncourts.gov/Documents/0/Public/Other/2008%20Elections/Order.12.18.08.pdf
"Any absentee ballots envelopes so identified that the local election officials and the candidates agree were rejected in error shall be opened..."
======================================
December 19, 2008 10:08 AM | Reply | Permalink
One last thought on reading the order,which everyone should do before they comment. It seems to me that, given the time constraints, they've tossed it to the campaigns and the elections officials and said, here, you come up with a process. (And if you can't agree we're gonna sanction you.)
I think this is a great solution. Not the least because it's gonna rub Norm's nose in it. Since the Sec. of State and county officials are involved, it's not just Norm vs. Al. If I'm Al's campaign, this is my proposal for the process:
a) All counties identify which ballots were rejected improperly (many have already done so).
b) Open and count them.
To echo an earlier writer, it's a trap for Norm. Let's see him oppose that one.
December 19, 2008 9:04 AM | Reply | Permalink
After thinking about this a while, isn't the trap that by requiring both sides to concur on the process, they're precluding either side from later lawsuits on the grounds that the process is flawed?
December 19, 2008 10:14 AM | Reply | Permalink