Franken Camp To Minnesota Court: Throw Out Coleman's Lousy Lawsuit
I have now had the chance to read through the Franken campaign's latest legal filings, responding to Norm Coleman's lawsuit to overturn the Minnesota election result. Franken's filings have a certain quality that we've seen not only in the recount but really throughout this whole election: Complete and utter contempt for Norm Coleman.
The Franken filings say that Coleman's lawsuit is without any merit, is excessively vague and sloppy, and presents no legally permissible remedies that could actually change the fact that he has lost the election. In short, they say the lawsuit should be thrown out or otherwise taken care of as soon as possible, so that Al Franken can take his seat in the Senate.
Our breakdown is available after the jump.
Jurisdiction
Franken's team argues that this court lacks jurisdiction to decide a Congressional race, and any jurisdiction it might have is severely limited. Instead, an election dispute would have to be resolved by the Senate. On that basis, they say, the whole claim should be dismissed and Al Franken's victory forwarded to the Senate. At most, the court could gather evidence in the dispute, to be sent to Washington.
Coleman's Claims: What Are They?
Franken's lawyers say Coleman is making many claims without offering evidence, instead offering up broad allegations that votes were improperly counted for Franken without citing specific ballots or describing the alleged errors. This criticism is made many times throughout Franken's filings, best summed up here: "...Franken objects to Coleman's failure to adequately set forward the grounds on which his contest will be made so that Franken can meaningfully respond."
Coleman's Remedies: Even Worse Than The Problems
Insofar as Coleman does make claims, Team Franken says his proposed remedies are illegal. For example, Coleman claims that absentee ballots for Franken were improperly accepted on Election Day. But because of the secret ballot, he wouldn't be able to prove whom the person voted for even if he could show that an individual envelope was wrongly accepted -- and he hasn't done that, either.
Coleman Wants A Do-Over
The Franken camp says Coleman is trying to reverse decisions his own campaign made, such as approving improperly-rejected absentee ballot envelopes, after the votes were counted and he lost.
We Can Play This Game, Too
If the court does end up looking into complaints about irregularities, the Franken campaign says it can do an even better job and just increase their own lead. In a hilarious example, they raise questions as to whether Coleman's own campaign manager, who travelled to the state from Iowa to run the campaign, was legally eligible to cast his vote in the state of Minnesota.
Even on the issue of double-counted absentee ballots -- probably the best claim that Coleman has going for him, but is based on a cherry-picked list of deep-blue precincts -- the Franken camp has submitted their own list of deep-red precincts where they say this same error netted Coleman a few dozen votes, partially balancing out the Coleman camp's math on this point.
The Bottom Line
The Franken campaign clearly wants this thing to be over as soon as possible. But if it does continue to drag out, they've made it clear that they're ready to compete against Coleman on every last point he's raised.
Heh. Nothing like a good game of hardball from a Democrat to cheer me up!
January 13, 2009 1:32 PM | Reply | Permalink
Yeah, especially since I had assumed it was a lost art.
January 14, 2009 11:31 AM | Reply | Permalink
I'm all in favor of having Franken seated as soon as possible, but I'm not sure the jurisdiction argument really holds water. Maybe one of the lawyers can help us out, but I can't think of any examples of an election dispute being sent to Washington to be decided by the Senate. On the other hand, there are plenty of cases where a state court has been asked make rulings on election results. After every election, one of the judges at my court in Delaware had to certify the results of the vote. I can't imagine Minnesota is any different on that point.
The rest of their arguments may or may not have merit, but they seem like pretty standard responses to me, in general. I'm sure the Franken campaign doesn't have much respect for Coleman at this point, but none of these answers are any more zealous than what I've seen even in auto accident civil cases. They always ask for a case to be dismissed and offer up as many counter-arguments as they can think of.
January 13, 2009 1:41 PM | Reply | Permalink
I second your thought on the jurisdiction issue. That claim is over the top for Franken.
Minnesota law explicitly makes this special court the arbiter of Coleman's claim. Franken needs to hold his head high and have everyone know that he's following the statutory procedure, it's Coleman who's the whiner.
January 13, 2009 3:10 PM | Reply | Permalink
Agree. Ix-nay on the jurisdiction argument. It's completely crazy to argue that the Senate should arbitrate state voting procedures.
I intensely dislike arguments that would give the legislative branch ad hoc authority to decide who should be seated when the issue relates almost exclusively to state law -- that's why the arguement over Roland Burris was futile, unless they had actual evidence regarding impropriety on the part of Burris.
January 13, 2009 5:23 PM | Reply | Permalink
There can be no dispute that the United States Senate has the authority to adjudicate the election contest, if it chooses to do so.
Article I, Section 5: "Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members...."
I doubt that the Senate wishes to do so though. I'm sure that, at least for now, the Senate prefers to let the state courts handle the matter. I could imagine that changing, though, if the state court proceeding drags on too long.
IMHO, the Minnesota statue that requires a final determination of election contests before a certificate is issued is a bad law. A person filing an election contest should have the burden of proving that the case is strong enough to merit an injunction against the issuance of a certificate.
January 13, 2009 7:04 PM | Reply | Permalink
This is great news..for NORM COLEMAN!!!
Someone had to write that.
REALITY: Al fielded the best legal mind in the country to defend the suit by Fox; he knows the importance of and how to assemble a crushing legal team. One thing that helped Al in the Fox case (besides being right) was Al's clear abilty to understand the law, despite not being a lawyer. Al is going to kick major league tailbone here.
January 13, 2009 3:00 PM | Reply | Permalink
On the jurisdiction issue, I looked at the statute and it does appear that the only finding to be made by the court is who won the election. If it hears other evidence such as about voting irregularities, it is not to make findings, but to submit the evidence to the Senate. I haven't looked any deeper, but that's what the statute says. It's a little hard to believe they're asking for so much relief when it's not permitted in the statute on statewide office election contests. Maybe someone can find if there's more to it.
January 13, 2009 3:10 PM | Reply | Permalink
Doesn't determining who won necessarily involve determining which votes should be counted and for whom? One has to assume the MN-SC knows the law and wouldn't be going through this exercise if it didn't feel it had jurisdiction. There might be some Coleman claims that the court dismisses because of jurisdictional issues, but it seems to me that most of Coleman's claims have to do with the validity of absentee ballots, and this is clearly a matter of law.
Coleman's biggest problem (aside from the small matter of lack of evidence) is a lack of a suitable remedy. What does he want the court to do about the absentee ballots? Direct he counties to examine them again? They've already examined them three times. Have the court itself examine all the absentee ballots? That's not likely to happen. Just examine the ones he wants them to examine? They're not stupid. What, exactly, does he want the court to do?
Coleman can claim anything he wants, but the court is going to want to see evidence and a reasonable proposed remedy. If all Coleman has to show is shadow puppets and his only proposed remedy is to arbitrarily award him 300 more votes, this could be a really short hearing.
January 13, 2009 3:40 PM | Reply | Permalink
Eric, you should do some "fact checking"
You claim that the Franken's legal filings display "Complete and utter contempt for Norm Coleman". Eric, this is bullshit. You might have complete and utter contempt for Coleman. If so, that's your problem. But the Franken's legal filings are not dealing with "quality" Coleman as a person but rather with merits of the Coleman legal challenge regarding Canvassing Board's report. I do know Franken personally via my involvement in the DFL and I can tell you that Franken does not have the "utter contempt" you wish to attribute to him. Your attributing this contempt to Franken is not only a disservice to Al Franken but also to the politics of civility which Obama is trying to foster.
Now with regards to the The Bottom Line where you state: "The Franken campaign clearly wants this thing to be over as soon as possible. But if it does continue to drag out, they've made it clear that they're ready to compete against Coleman on every last point he's raised."
Interesting idea, but where's "the beef"? In other words, on what basis do you make this claim, especially in light of the fact that Franken's legal challenge seems -- at least on the surface -- to be totally without merit. If your description of the Franken challenge is accurate, then the "jurisdiction" issue would seem to be particularly problematic -- given that Minnesota statue is the repository of the guidelines for determining how and where election challenges are to be adjudicated. If the state election law stipulates a 3-judge panel is the the place for the adjudication of a "contested election", I would be surprised that the 3-judge panel would concur this the Franken challenge about jurisdiction -- unless I am missing something.
If I am correct and the Franken challenge has little if any chances of succeeding, then the question is this "Why did he file the challenge?" If it is as weak as it would appear to be, then it could be seen as something akin to "grasping at straw".
This "grasping at straw" interpretation is reinforced by the fact that the Franken legal team already has made appeal that on the surface seemed to be devoid of merit. That appeal asked that an election certification be signed BEFORE the legal challenge by Coleman had been adjudicated? Given the fact the request -- which flew in the face of Minnesota election law -- was also most immediately shot down by Tim Pawlenty and by Secretary of State Mark Ritchie.
So Eric, is the question: Why would the legal team go down two legal pathways which seem to run into a dead-end of Minnesota election law? And why would he do this given the fact that from a PR perspective, these particularly pathways are probably not going to help his approval ratings?
Here is a possible answer why the Franken legal might be "grasping for straws. Perhaps they believe that the "discovery process" that is part of the "legal contest" might very well lead to the discovery of additional Coleman votes that would in turn lead the 3-judge panel to rule that Coleman winner of the contest.
I would suggest that Franken legal team might have a real concern about the possible outcome of the legal contest and that is why they are exploring each and every possibility for "check-mating" Coleman before any adjudication is actually afforded Coleman in the contest phase of the election. Just a hunch.
January 13, 2009 3:31 PM | Reply | Permalink
Discovery can garner lots of evidence when the source is an adversary who has every incentive to keep that information hidden. In this case, however, most of the evidence Coleman needs is already readily available. I don't think you could say that the counties and the Canvassing board have been anything but open and above-board through this whole thing. They've checked, double-checked and triple-checked and everything has been completely transparent. The chance that discovery will find a treasure trove of Coleman votes seems vanishingly small.
If anything, I suspect the jurisdictional question is just a way of keeping Coleman's lawyers from adopting a kitchen sink strategy and dragging this on forever. Any claims that they can get tossed on jurisdictional grounds allows them to concentrate on those left.
January 13, 2009 3:56 PM | Reply | Permalink
Um, Stephen from Minneapolis, did you really mean this?
"Interesting idea, but where's "the beef"? In other words, on what basis do you make this claim, especially in light of the fact that Franken's legal challenge seems -- at least on the surface -- to be totally without merit."
I was following you until the second sentence in this paragraph. Don't you mean Coleman's legal challenge seems -- ... -- to be totally without merit?
Thanks for clarifying.
January 13, 2009 4:03 PM | Reply | Permalink
Here is the relevant portion of the statute governing the duty of the court in an election contest for the U.S. Senate:
“When a contest relates to the office of senator or a member of the house of representatives of the United States, the only question to be decided by the court is which party to the contest received the highest number of votes legally cast at the election and is therefore entitled to receive the certificate of election. The judge trying the proceedings shall make findings of fact and conclusions of law upon that question. Evidence on any other points specified in the notice of contest, including but not limited to the question of the right of any person to nomination or office on the ground of deliberate, serious, and material violation of the provisions of the Minnesota Election Law, must be taken and preserved by the judge trying the contest, or by some person appointed by the judge for that purpose; but the judge shall make no findings or conclusion on those points.”
I may have read it too narrowly, as it does say the court is to find who received the most “legally cast” votes, which would include a review of disputed ballots. “After the final judicial determination of the contest, upon application of either party to the contest, the court administrator of the district court shall promptly certify and forward the files and records of the proceedings, with all the evidence taken, to the presiding officer of the Senate..” The statute provides for appeal directly to the Minnesota Supreme Court.
The jurisdictional issue relates to the Coleman camp apparently asking for relief that’s not authorized in the statute.
January 13, 2009 4:03 PM | Reply | Permalink
That makes more sense. Maybe Eric didn't read it quite correctly. Since Franken himself has sought some relief from Minnesota courts it's hard to see how the MN S. Ct. has no jurisdiction at all.
January 13, 2009 5:28 PM | Reply | Permalink
Thanks for providing the actual statute, Ghostrider.
Yes, the jurisdictional claim by Franken sounds like a way of preventing some of the Coleman claims from even being adjudicated, and of blocking some of the Coleman proposed remedies.
Given that the main object of the Coleman suit is probably delay, not victory--and given that adjudication is slow, whereas dismissal is fast-- Franken (and the Senate Democrats) would clearly like as much of Coleman's suit to be dismissed, rather than beating Coleman on the merits. Both routes will get Franken into the Senate, but one will take much longer than the other.
January 14, 2009 9:27 AM | Reply | Permalink
Eric, I gotta get all snarky with you for your bottom line comment. You should the title to "Painfully Obvious Conclusion"
Yeah, Franken wants this over with. Yeah, they're going to keep doing what they have been doing: fight hard on every point. That's how you win elections and lawsuits.
That's a bit nitpicky but I said it was snarky.
January 13, 2009 4:07 PM | Reply | Permalink
Those of you surprised at a Democrat playing hardball: now you know why we (Minnesota Democrats) picked him for a candidate. OK, it helped that he agreed on issues and philosophy with the DFL base, but he wasn't the only candidate who could make that claim. Franken is one of the Democrats who understands how readily the Republicans play rough.
January 13, 2009 5:11 PM | Reply | Permalink
I may be wrong here but I understand that a jurisdiction challenge can be almost a pro forma claim in litigation? Sort of the shotgun approach where you hit them with everything to make the other side respond
January 13, 2009 6:57 PM | Reply | Permalink