I've excerpted what I believe to be representative portions of each court document released today, Thursday. I'll eventually return to this post and provide context for each filing.

I. INTRODUCTION

Contestee Al Franken respectfully moves this Court for an order in limine excluding catchall "certifications" sought from dozens of counties in a last-minute effort to force overburdened counties across the state to undertake investigations, express opinions, and create documents which are then to be "certified" and admitted into evidence before this Court. With all due respect, all such "certifications" should be rejected by this Court.

First, as many of the counties have themselves noted, nothing in the Minnesota Data Practices Act requires a governmental entity to undertake investigations, to express opinions or to create documents where none existed before. Second, even if Minnesota counties and cities could be forced through a simple Data Practices Act (or even a subpoena) to create such material, it is plainly inadmissible hearsay. Such documents fall neither within the exception created by Minnesota Evidence Rule 803(6) (business records) or 803(8) (public records and reports) because such "certifications" are neither created in the normal course of business, nor do they constitute a "public record or report" within the meaning of the rule. Third, and perhaps most importantly, allowing Contestants to introduce essential elements oftheir case through this device would utterly deprive Contestee of the opportunity to cross examine these witnesses on the foundation for their "certification" of these facts, opinions, and conclusory statements and would deprive this Court of an appropriate record to evaluate the proffered statements. The hearsay rule was designed precisely to avoid that result.

For all three reasons, Contestee respectfully requests an order excluding all such "certifications" from evidence.

...

III. ARGUMENT AND AUTHORITY

This evidence should be excluded for three reasons. First, nothing in the Minnesota Data Practices Act requires a governmental entity to undertake investigations, to express opinions or to create documents where none existed before. Second, even if Minnesota counties and cities could be forced to create such material, it is inadmissible hearsay for which no exception applies. Third, allowing Contestants to introduce essential elements of their case through this device would deprive Contestee of the opportunity to cross examine these witnesses on the foundation for their "certification" of these facts, opinions, and conclusions and would deprive this Court of an appropriate record upon which to evaluate these conclusory statements.

...

IV. CONCLUSION

For these reasons, Contestee respectfully submits that the requested "certifications" be excluded in favor of actual testimony of persons with knowledge, copies of the original source materials, and other relevant evidence, all subject to cross examination on the public record before this Court, on the record, and before the public.

Dated: February 25, 2009

Source: Contestees Motion in Limine to Exclude County Data Practices Act Certifications via MNCourts.gov [PDF]

The above-entitled matter came before the Court upon Contestee's Motion in Limine. Counsel noted their appearances on the record. The Court having heard and read the arguments of counsel, and the files, records, and proceedings herein, makes the following:

ORDER

1. Contestee's Motion in Limine is GRANTED.

2. The Court's Memorandum, filed herewith, is incorporated herein.

3. Any other relief not specifically ordered herein is DENIED.

IT IS SO ORDERED.

...

The information sought by Contestants does not fall within the enumerated hearsay exceptions provided by Rules 803 or 807 of the Minnesota Rules of Evidence.5 The hearsay exception applies to existing public records. Here, Contestants are asking officials to create new documents in response to their request. County and municipal officials are under no obligation to create new documents that are not already in existence and kept in the regular conduct of governmental business. Under the Minnesota Rules of Evidence and the MGDPA, Contestants would have been entitled to request existing government records that the county is under a duty to create pursuant to Rule 803(8), or in the alternative, a certification that the record does not exist pursuant to Rule 803(10). To the extent either party's requests are outside of these parameters, the Court will sustain hearsay objections. For the aforementioned reasons, the Court grants Contestee's motion in limine. Any other relief not specifically ordered herein is denied.

Source: Order Granting Contestees Motion in Limine via MNCourts.gov [PDF]

INTRODUCTION

This Court has repeatedly and unequivocally ruled that the scope of Contestants' challenge is limited to the approximately 4,800 ballots pleaded in their Notice of Contest. Notwithstanding these court rulings, and after nearly five weeks of trial, Contestants now, for the first time, make a sweeping, unprecedented request for this Court to reconsider "all absentee ballots previously counted in this election"-roughly 286,000 ballots-with the aim of uncounting some number of them. Contestants' Mem. of Law at 9. This extraordinary Motion is wholly without basis in law. Indeed, it is so outlandish that Contestants do not even ask for any specific relief, nor do they cite any rule of procedure in support of their filing. Because their Motion far exceeds the permissible scope of this Contest, because the legal claim that underlies it

is substantively meritless, and because the Court lacks authority to provide Contestants the relief they are suggesting, it should be denied.

ARGUMENT

A. Contestants' Motion Must be Dismissed as Beyond the Scope of the Pleadings and Unsupported by Record Evidence

...

B. Contestants' Argument that the Principles of Equal Protection Require Expanding the Scope of the Recount to All 280,000 Ballots is Without Merit.

...

C. Contestants Do Not Ask for Any Relief That This Court Has Authority to Grant

...

CONCLUSION

For the reasons discussed above, this Court should deny Contestants' Motion for Ruling Applying February 13, 2009 Order to Previously Counted Absentee Ballots.

Dated: February 24, 2009

Source: Memorandum of Law in Opposition to Contestants Motion for Ruling Applying Feb 13, 2009 Order to Previously Counted Absentee Ballots via MNCourts.gov [PDF]

Pursuant to Minn. Stat. § 204B.44, Petitioners petition the Supreme Court of the State of Minnesota to order that their votes cast in the November 4, 2008 general election for United States Senator from Minnesota be counted, Petitioners state and allege as follows:

JURISDICTION

1. This action is necessary to correct errors and omissions made by the Respondents related to the handling of legally cast absentee ballots in the November 4, 2008 election for United States Senator from Minnesota. Respondents are charged with duties concerning the election. This Court's order is necessary to ensure that all legally cast absentee ballots are counted.

2. This Court has jurisdiction over this matter pursuant to Minn. Stat. § 2048.44.

PARTIES

3. Petitioners are Minnesota residents qualified as eligible voters under Minnesota election law who cast absentee ballots in the November 4, 2008 general election for United States Senator from Minnesota. Petitioners' absentee ballots were wrongfully rejected and, therefore, not counted in the final election results. Petitioners are listed by County of Residence in Exhibit A hereto.

4. Mark Ritchie is the Minnesota Secretary of State and the chief election official in Minnesota. In his capacity as the Secretary of State, Mr. Ritchie is responsible for the administration of elections in the State of Minnesota, including the November 4, 2008 general election for United States Senator from Minnesota. Mr. Ritchie is included in this action as a necessary party.

...

RESPONDENTS' ERRORS AND OMISSIONS

17. Respondents did not count Petitioners' legally cast absentee ballots in the November 4, 2008 general election for United States Senator from Minnesota, 1 Some of Petitioners' ballots were identified by the Counties as having been improperly rejected. Yet such ballots were not included in the administrative recount because they were objected to in the process established by the Minnesota Supreme Court's December 18, 2008 Order and implemented by the Secretary of State.

CLAIM FOR RELIEF

WHEREFORE, Petitioners respectfully pray for an Order of the Court as follows:

1. Directing that Petitioners' absentee ballots shall be opened and counted, and the total be declared and certified, for such use as might be deemed appropriate by the United States Senate or the judges responsible for the election contest pending in the District Court for the County of Ramsey, No. 62- CV -09-56 or any other proper use under law, pursuant to procedures established by this Court.

2, Granting Petitioner's such other relief as the Court deems just and appropriate.

Dated: February 20, 2009

Source: Petition by Certain Minnesota Voters to Have Their Votes Counted Pursuant to Minn. Stat § 204B.44 via MNCourts.gov [PDF]

Contestants believe that the requests sent to counties and municipalities were appropriate and the responses are admissible evidence, and we are content to rely on oral argument and the authorities provided to the Court at that time. We write merely to inform the Court that if it has any hesitancy regarding the appropriateness of the requests under the Data Practices Act or the admissibility of the certifications received in response thereto, Contestants will be happy to accommodate those concerns in a fashion designed to minimize the burden on local election officials. Our goal is to provide the evidence the Court requires in order to establish that the rejected absentee ballots at issue in this case are indeed legally cast votes that should be included in the Court's calculation, pursuant to Minn. Stat. ? 209.12, of which party received the highest number oflegally cast votes and is therefore entitled to receive the certificate of election.

...

So long as Contestee would agree not to challenge foundation, which is obviously present, such an approach would provide the available evidence to the Court without having to burden local officials with having to come to S1. Paul to testify regarding matters about which there can be no reasonable dispute. Short of such an approach Contestants would have no choice but to call scores more officials to testify.

For these reasons, as well as those asserted in oral argument, Contestants respectfully request that Contestee's motion be denied.

Dated: February 25, 2009

Source: Contestants Opposition to Motion in Limine to Exclude Certifications via MNCourts.gov [PDF]

Dear Judges Hayden, Marben and Reilly:

We write pursuant to Gen. Rules of Practice 115.11 to request permission to file a motion asking the Court to reconsider its ruling yesterday striking the testimony ofPam Howell. The lack of bad faith or misconduct, the innocuous nature of the notes she had, the lack ofreal prejudice to Contestee, and the critical importance of her testimony to Contestants' case, together constitute compelling circumstances for the Court to reconsider its decision.

The record does not reflect any evidence of bad faith or misconduct on the part of counsel. Indeed, there was no effort to hide anything and no bad faith whatsoever. The failure to produce the notes Ms. Howell provided to Mr. Haap oja was inadvertent. Neither party produced any documents at all to the other before trial. Discovery focused on responses to interrogatories; the document request which purportedly required the production of this document was an extremely broad catch-all. If the Court has any doubt about counsel's good faith, it should give us the opportunity to present evidence to satisfy any concerns.

Moreover, the notes themselves are neither damaging nor inconsistent in any respect with Ms. Howell's testimony or with Contestants' disclosed theory ofthe case on this claim. The notes are simply Ms. Howell's effort to make notes to preserve her memory of the incident about which she testified.

Not having the notes did not preclude Mr. Lillehaug from vigorously cross-examining Ms. Howell or otherwise unfairly prej udice Contestee. In any event, to the extent Mr. Lillehaug requires more time to review the notes and an additional opportunity to question Ms. Howell, there is no reason why she cannot be called to appear again at trial.

Ms. Howell's testimony is relevant evidence that is critical to Contestants' claim regarding the double-counting of ballots in several precincts. As the Court heard, Ms. Howell testified that duplicate ballots were made and not marked as such. That fact indicates that counting the originals resulted in double-counting. The issue is a material one: all told, in the various precincts where this inadvertent mistake appears to have occurred, double-counting contributed approximately 100 additional votes to Contestee.

In the circumstances, Contestants respectfully believe the sanction of excluding Ms. Howell's testimony is unwarranted and unprecedented. We are unaware of any circumstance in which a court has imposed such an extreme sanction in the absence of compelling evidence of misconduct or bad faith. See, e.g., Quinn v. Consol. Freightways Corp. of Delaware, 283 F.3d 572 (3d Cir.2002) ("the exclusion of critical evidence is an 'extreme' sanction, not normally to be imposed absent a showing of willful deception or 'flagrant disregard' of a court order by the proponent of the evidence"(citation omitted))

For these reasons, we respectfully request that the Court grant Contestants the opportunity to file a motion to reconsider its ruling on this critical issue.

Dated: February 26, 2009

Source: Letter to Judges Requesting Permission to Request Permission to File a Motion to Reconsider Ruling Striking Testimony of Pam Howell via MNCourts.gov [PDF]

Pursuant to an order issued from the bench during trial.on February 25, 2009, the Court enters the following:

ORDER:

1. The Court's order of February 25, 2009 striking the testimony ofPamela Howell is vacated.

2. The attached Memorandum is incorporated as if fully set forth herein.

MEMORANDUM

On January 9, prior to the beginning oftrial in this election contest, Contestee served both interrogatories and document requests upon Contestants requesting disclosure ofdocuments and information relating to Contestants' claims in this proceeding. Contestant provided responses to these discovery requests on January 19. On February 3, the Court, in response to complaints from Contestee regarding the sufficiency of Contestants' responses, reminded Contestants of their continuing obligations under the Rules of Civil Procedure to provide updated answers to interrogatories and supplement them as necessary. See Minn. R Civ.P. 26.05. That same day, the Court agreed to allow Contestee to serve supplemental discovery requests upon Contestants and Contestants agreed to provide responses by February 6. On February 9, Contestee again objected to Contestants' failure to provide complete responses to discovery requests. The Court again underscored to the parties the critical importance of ensuring that discovery responses were supplemented and accurate.

On February 25, 2009, during the cross-examination of Pamela Howell by Contestee, Contestee's counsel discovered for the first time that Ms. Howell had provided a document to Contestants' counsel that had never been disclosed to Contestee in response to his discovery requests. Contestants' counsel acknowledged that Contestants had received the document prior to trial but had failed to disclose it to Contestee. After hearing argument from both parties, the Court ruled from the bench striking Ms. Howell's testimony.

...

By failing to disclose the existence of a document provided to them by the witness, Contestants have failed to comply with orders from this Court directing parties to ensure that their discovery responses are complete, accurate, and up-to-date. The Court recognizes that striking testimony is a severe sanction but notes that this trial has been underway for five weeks and that the parties have been repeatedly instructed of the need to supplement discovery responses. The Court believes this sanction was within its discretion in light of Contestants' repeated failures to adhere to their discovery obligations under the Minnesota Rules of Civil Procedure. Nonetheless, the Court recognizes that the judicial process is an attempt to seek the truth and that courts "should not unduly hamper that search by excluding relevant evidence where other means are available to protect a party from the effects ofan inadvertent failure to disclose." Comfeldt, 262 N.W.2d at 697, The Court has the discretion to exclude testimony, but "the exercise of that discretion should be tempered by an effort to seek a solution short of exclusion that will accommodate the competing interests inherent in the discovery rules and the adjudicative process itself," Id.

The record reflects that Contestants' failure to disclose the document was inadvertent and not in bad faith. Contestee has now had an opportunity to review the document and prepare a proper cross-examination. Contestee will not be substantially prejudiced by permitting Ms. Howell to conclude her testimony. Accordingly, the Court now reconsiders its ruling of February 25 and vacates its order to strike Howell's testimony.

Dated: February 26, 2009

Source: Court Order Striking Testimony of Pamela Howell is Vacated via MNCourts.gov [PDF]

Contestants hereby move to withdraw the previously filed motion seeking the admission pro hac vice of Benjamin Ginsberg. Mr. Ginsberg will not participate in the trial and no longer seeks the Court's permission to do so.

Contestants accordingly request that the Court enter an Order that the record reflect the formal withdrawal of the motion.

Dated: February 26, 2009

Source: Motion to Withdraw Pro Hac Vice of Benjamin Ginsberg via MNCourts.gov [PDF]

NOTICE OF MOTION

TO: AL FRANKEN AND HIS ATTORNEY RICHARD D. SNYDER, ESQ. 200 S. 6TH ST. SUITE 4000, MPLS. MN 55402.

PLEASE TAKE NOTICE: The Motion of Jeffrey Cox and the city of Duluth, as more fully specified below, will be heard by the Court on February 27, 2009 at 1:00 p.m. before the presiding judge in the above referenced matter at the Minnesota Justice Center, 25 Rev.Dr, Martin Luther King Jr. Blvd., St. Paul, MN. 55155, Courtroom 300.

MOTION

Jeffrey Cox and the city of Duluth moves the court pursuant to Rule 45.03 (c). Minn.R.Civ.P. for an order quashing the subpoena served by Franken upon Jeffrey Cox or in the alternative, orderingFranken to reimburse Cox andthe Cityreasonable expenses in the amount of $1,151.50. The movants rely upon their Memorandum of Law and Affidavit of M. Alison Lutterman in support of their motion.

Dated this 26th day of February, 2009

Source: Notice of Motion and Motion by Jeffrey Cox and City of Duluth to Quash Subpoena via MNCourts.gov [PDF]

INTRODUCTION

Jeffrey Cox, City Clerk for the City of Duluth as been served with a subpoenaby Al Franken to testify in this matter. Mr. Cox has requested that Franken provide reasonable compensation to himas authorized by Rule 45.03(d), Minn.R.Civ.P. Because Franken has 110t agreed to provide reasonable compensation to Cox, he and his employer the city of Duluth assert this motion to quash pursuant to Rule 45.02(c), Minn.R.Civ.P. Because of the inadequate notice in advance ofthe requested time for testimony, it is impossible for Cox and the City to comply with the notice requirements ofRule 115.10, Gen.R.Prac. Therefore, they request that the Court, in the interests ofjustice, relax the notice requirements pursuant to Rule 115.07, Gen.R.Prac.

...

CONCLUSION

Municipalities all over the state are facing a budget crisis. The city of Duluth is not exception. The City runs a leanly staffed organization that is struggling to provide to its citizens the services they have a right to expect. It should not be asked to bear the expense of providing its employees for these proceedings because it has no interest in these proceedings and is not a. party. The subpoena should be quashed, or in the alternative, Franken should be ordered to pay in advance the estimated costs for Cox's appearance.

Dated this 26th day of February, 2009

Source: Memorandum of Law by Cox and the City of Duluth Supporting their Motion to Quash the Subpoena of Jeffrey Cox via MNCourts.gov [PDF]

I've excerpted what I believe to be representative portions of each court document released today, Wednesday. I'll eventually return to this post and provide context for each filing.

TO: Contestee Al Franken, by and through his attorneys David L. Lillehaug, Esq., Fredrikson & Byron, P.A., 200 South Sixth Street, Suite 4000, Minneapolis, MN 55402.

PLEASE TAKE NOTICE that at a time to be set by the Court, Contestants will move the Court pursuant to Rule 60.02 of the Minnesota Rules of Civil Procedure for an order vacating its Order Granting Summary Judgment dated February 10, 2009. This motion is based upon all the files, records, evidence in the record, and proceedings in this case, as well as the Memorandum of Law, Affidavit of James K. Langdon, and Proposed Order served and filed herewith.

Dated: February 25, 2009

Source: Contestants Notice of Motion and Rule 60.02 Motion to Vacate Judgment via MNCourts.gov [PDF]

INTRODUCTION

The provisions of Minnesota Rule of Civil Procedure 60.02 allow relief from a final judgment. While rarely used, the law recognizes that under certain circumstances, it is appropriate to grant relief from an otherwise final judgment because the basis for that judgment no longer exists. This is one of those unique occasions.

On February 10, 2009, this Court granted summary judgment to 23 of the 64 absentee voters represented by Mr. Nauen ("Nauen voters") and ordered the absentee ballots of those 23 voters opened and counted as legally cast votes. Contestants did not oppose the Nauen voters' motion for summary judgment, so long as the Contest Court treated all similarly situated ballots in the same manner. Three days later, on February 13, 2009, this Court ruled as a matter of law that ballots in ten different categories are not legally cast and could not be opened and counted. Memorandum Op. at 10. Seven of the 23 ballots on which the Court granted summary judgment on February 10, do not comply with the standard articulated by this Court on February 13, 2009.

[Brief list detailing the seven voters by name along with reason for which their ballot was improperly counted.]

January 21, 2009 Affidavit of Charles Nauen.

In addition to these seven ballots, Contestants recently learned that the absentee ballot of Hannah Gorski, which the Court ordered opened and counted on February 10, 2009, did not meet all of the criteria set forth in the Court's February 13, 2009 Order and was based on incorrect information submitted in their original affidavits. Nauen Mem. of Law February 20, 2009 at 15-16. Ms. Gorski did not sign and complete her absentee ballot application; rather, her mother signed the application.

These eight ballots which the Court ordered opened and counted cannot be squared with the Court's subsequent ruling on February 13, 2009 requiring strict compliance with the statutory mandates before absentee ballots will be opened and counted. It is no longer equitable to enforce a judgment because the basis for that judgment has disappeared. It is, however, still possible to correct this error and thus put all similarly situated absentee voters in the same position. Contestants request that this Court vacate its prior summary judgment ruling and consistently apply the standard set forth in its February 13, 2009 Order to the absentee ballots of the Nauen voters.

...

CONCLUSION

For all of the foregoing reasons, Contestants respectfully request this Court vacate its February 10, 2009 Order in its entirety or, in the alternative, with respect to at least the eight voters discussed above.

Dated: February 25, 2009

Source: Contestants Memorandum of Law in Support of Rule 60.02 Motion to Vacate Judgment via MNCourts.gov [PDF]

TO: Contestee Al Franken, by and through his attorneys David L. Lillehaug, Esq., Fredrikson & Byron, P.A., 200 South Sixth Street, Suite 4000, Minneapolis, MN 55402.

PLEASE TAKE NOTICE that at a time to be set by the Court, Contestants will move the Court for an order STRIKING Count IV of Contestee's Counterclaims. This motion is based upon all the files, records, evidence in the record, and proceedings in this case, as well as the Memorandum of Law and Proposed Order served and filed herewith.

Dated: February 25, 2009

Source: Contestants Notice of Motion and Motion to Strike via MNCourts.gov [PDF]

INTRODUCTION

Contestee sought leave to amend his Counterclaims to modify his claims with respect to rejected absentee ballots. Contestants did not oppose that request but preserved their right to seek to add additional ballots in the same categories. When Contestee filed his Amended Answer and Counterclaims on February 21, 2009, however, he added an entirely new counterclaim and modified another-neither of which relate to rejected absentee ballots. These new claims are not within the scope of what he sought permission to do and come so late in the proceedings that Contestants would be unfairly and substantially prejudiced by permitting Contestee to pursue them. The Court accordingly should strike them.

ARGUMENT

Contestee's motion to amend sought leave only to interject additional rejected absentee ballots and to "clean up" his pending counterclaims regarding the ballots he had previously asked the Court to count. It did not seek leave to assert any other new claims. Nor did the Court grant such leave.

The Amended Answer and Counterclaims goes well beyond modifying Contestee's claims regarding rejected absentee ballots. His Third Counterclaim, which relates to duplicate/original ballot issues, has been broadened to apparently include more than the precincts previously stated in that claim (when it was denominated the Fourth Counterclaim). His Fourth Counterclaim, which asserts a chain of custody claim to disenfranchise some 61 voters in Becker County, is entirely new.

...

CONCLUSION

Contestee has attempted to assert new claims beyond those he sought and was given permission to modify. The Court should strike these unauthorized new claims.

Dated: February 25, 2009

Source: Contestants Motion to Strike Certain Amended Counterclaims via MNCourts.gov [PDF]

After a busy day yesterday, I have just two court fillings to work with today; I'll try and keep it brief, for your sake and mine.

The first document details an order by the Election Contest Court in response to Coleman's Motion for a Temporary Injunction. Coleman was seeking to halt the redaction of identifying information contained on the 933 absentee ballots which were deemed to have been wrongfully rejected. I've excerpted the latest order in it's entirety. I've also selected a few passages from the attached memorandum to aid in the illustration of the ECC's reasoning with respect to the original stipulation:

The above-entitled matter came before the Court upon Contestants' Motion for Temporary Injunction. Counsel noted their appearances on the record. The Court having heard and read the arguments of counsel, and the files, records, and proceedings herein, makes the following:

ORDER

1. Contestants' Motion for Temporary Injunction is DENIED.

2. The Court's Memorandum, filed herewith, is incorporated herein.

3. Any other relief not specifically ordered herein is DENIED.

IT IS SO ORDERED.

Dated this 24 day of February, 2009.

MEMORANDUM

I. Introduction

Approximately 2.9 million Minnesota citizens cast a ballot on Election Day. Of these, roughly 286,000 voters cast absentee ballots. Election officials rejected roughly 12,000 absentee ballots, 5,600 of which are at issue in this election contest and remain unopened and uncounted. This represents far less than one percent of the total number of ballots cast by Minnesota citizens in the 2008 election.

...

II. A Binding Stipulation and Court Order Govern the Legal Status of the 933 Ballots Opened and Counted on January 3, 2009

On February 3,2009, the parties entered into a stipulation in which they agreed that the 933 absentee ballots opened and counted on January 3, 2009 were "properly and lawfully opened and counted," and the results were "properly and lawfully included in the results of the 2008 United States Senate election as certified by the Minnesota State Canvassing Board." (Order Feb. 3, 2009.) Accordingly, Contestants "dismiss[ed] with prejudice all claims in the Notice of Contest relating to the 933 Ballots." (Id.) The parties further agreed that the Court should direct the Secretary of State to "take all necessary steps to remove and/or redact permanently the numbers affixed to the ballot envelopes on January 3, 2009." (Id. at 2.) The terms of the parties' agreement were acceptable to the Secretary of State. The parties' agreement was thereafter memorialized in the Court's Order issued February 3, 2009.

The binding stipulation and Order of February 3, 2009 are dispositive of Contestants' motion. Both campaigns have been competently and ably represented by counsel throughout these proceedings. The stipulation was drafted by counsel and signed by sophisticated parties familiar with the subject matter. The Court presumes the parties were apprised of the risks and benefits associated with entering into this agreement. At the parties' behest, the Court adopted the parties' stipulation in its totality and incorporated those findings into the Court's Order of February 3, 2009.

The parties' stipulation, and the Court's Order arising therefrom, is binding. The agreement was reached and submitted to the Court for its adoption after thoughtful negotiation by sophisticated and knowledgeable participants. The Court further analyzed Contestants' motion pursuant to the Dahlberg factors, discussed in greater detail below. In reviewing Contestants' motion in light of Dahlberg, the Court finds the public interest in ensuring the fundamental right to secrecy of a voter's ballot and the importance of upholding contract law weighs against granting Contestants' motion for injunctive relief.

...

V. Conclusion

For the aforementioned reasons, Contestants' motion for a temporary injunction is denied.

Source: Order Denying Contestants' Motion for Temporary Injunction via MNCourts.gov [PDF]

The above ruling is essentially irrelevant; the status quo remained entirely unchanged. The ECC simply stood behind their prior ruling; the 933 ballots were going to be redacted before, and they are still going to be redacted. Moving on.

Our second filling is also an order by the ECC in response to a Coleman motion. At the very beginning of the litigation process, Coleman attempted to group, or form a class, of all voters whose absentee ballot was rejected. In forming a class, the Coleman campaign sought to include as many future votes as possible. In attempting to create this class, the Coleman campaign intertwined their argument with the Nauen 61. I've quoted the complete text of the order below, along with the issue's history as provided within the introduction of the attached memorandum:

This matter comes before the Court on Intervenor Norm Coleman's motion for certification of a class. The Court heard argument on this motion on February 12, 2009. The Court having heard and read the arguments of counsel, and based upon the files, records, and proceedings herein makes the following:

ORDER

1. Intervenor Coleman's motion for certification of a class is DENIED.

2. Any other relief not specifically ordered herein is DENIED.

3. The attached Memorandum is incorporated as if fully set forth herein.

Dated: February 23, 2009

MEMORANDUM

I. Introduction

On January 13, 2009, certain individual Petitioners filed a petition pursuant to Minnesota Statute § 204B.44 with the Minnesota Supreme Court arguing that their ballots had not been counted in the 2008 general election due to official errors and omissions. Norm Coleman ("Coleman") moved to intervene in the Petitioners' proceeding before the Supreme Court. On January 16, 2009, the Supreme Court issued an order granting Coleman's motion for intervention and directing the Petition to this Court for consideration and decision within the current election contest. In that Order, the Supreme Court observed that, "[j]udicial efficiency and the interests of justice will better be served if the claims presented in this matter are addressed by the three judge district court panel in the election contest proceeding in Ramsey County District Court." (Order, January 16, 2009 at 1-2.)

On January 23, 2009, Coleman moved this Court for certification of a class pursuant to Minnesota Rule of Civil Procedure 23. Coleman seeks "certification of a class of thousands of voters who submitted absentee ballots in the November 4, 2008, general election...." (Intervenor's Mem. at 1). Petitioners filed an objection to this motion on February 9,2009. The Court held a hearing on this motion on February 12, 2009. At the hearing, Contestee Al Franken ("Contestee") moved the Court for limited intervention in Petitioners' § 204B.44 proceeding for purposes of objecting to the motion for class certification. Contestee joined in Petitioners' opposition to Coleman's motion.

...

D. Adequacy of Representation is Not Satisfied

Rule 23.01(d) requires that "the representative parties will fairly and adequately protect the interests of the class." Representational adequacy requires that the representative parties' interests must coincide with the interests of other class members and that the parties and their counsel will competently and vigorously prosecute the lawsuit. Aria, 367 N.W.2d at 513. Factors used to determine if the class representative and class counsel are adequate include: (1) whether the representatives' interests are sufficiently identical to those of absent class members so that the representatives will vigorously prosecute the suit on their behalf; (2) whether the attorneys are qualified, experienced, and capable of conducting the litigation; and (3) whether the representatives have any interests that conflict with the objective of the class they represent. Streich, 399 N.W.2d at 215. Given that Coleman has failed to propose a class representative or class counsel, there is no adequacy of representation in the proposed class.

Under Rule 23 each of the four prerequisites of 23.01 must be established before a class may be certified. The Court finds that Coleman has failed to carry his burden of establishing that typicality, commonality or adequacy of representation exist in the potential class of voters. Coleman's motion for class certification is denied.

Source: Order Denying Motion for Certification of a Class via MNCourts.gov [PDF]

The Election Contest Court basically determined that the entire subset of rejected absentee ballots is not homogeneous; they asserted that all rejected absentee ballots were not created equally. It is still possible, perhaps probable, for distinct classes to exist within the entire rejected absentee ballot subset, but the Coleman or Franken campaigns have yet to establish their existence. This order does nothing to diminish the future identification of these smaller, distinct classes as the ECC only stated that the entire subset is not a distinct class; they made no allusion to other, potential classes.

The Coleman campaign has hinted at the possibility of concluding their side of the arguments before the weeks end, but with three days to go, its anybody's guess. The court resumes at 9 AM CT on Wednesday.

On February 4th, the Franken campaign moved to amend their original counterclaim to Coleman's election contest notice. Then on February 6th, the Coleman campaign essentially consented to Franken's request. Finally on Saturday afternoon, the Franken campaign released their newly amended list to members of the Minnesota media as well as the Election Contest Court.

The Franken release came in the form of a twenty-five page PDF; two exhibits, labeled X and Y accompanied the document. An overview of these exhibits is provided within the first counterclaim, as presented below in it's entirety:

...

FIRST COUNTERCLAIM

ERRONEOUSLY REJECTED ABSENTEE BALLOTS

1. Franken has identified a number of absentee ballots that were rejected in error by election judges and local election officials, in the first instance, or by Coleman as part of the absentee ballot review process pursuant to order of the Minnesota Supreme Court.

2. In a complete about-face from his previous position, Coleman now alleges that approximately 4,800 absentee ballots were rejected in error. Of those, Franken agrees that the absentee ballots identified in attached Exhibit X should be opened and counted or, as to those rejected for lack of registration, the envelopes should be opened to determine if voter registration applications were submitted.

3. Franken further alleges that the absentee ballots identified in attached Exhibit Y, but not among those identified by Coleman, should be opened and counted or, as to those rejected for lack of registration, the envelopes should be opened to determine if voter registration applications were submitted.

4. A number of the absentee ballot envelopes and related materials identified in Exhibits X and Y are the subject of pending Minnesota Government Data Practices requests and trial subpoenas. Franken expects to refine these Exhibits as information is received and as evidence is adduced at trial.

...

Source: Contestee's First Amended Answer and Counterclaims via MNCourts.gov [PDF]

I've parsed through each of these exhibits and compiled the following spreadsheets to allow for a more efficient dissemination of the information contained therein:

I've further condensed the data provided above, into the table below:

                       Identified        Extrapolation
                         Voters       Coleman      Franken
Exhibit X                  781         319.06      334.10
    Coleman Counties       451         142.87      104.39
    Franken Counties       330         103.39      175.72

Exhibit Y                  804         305.53      368.88
    Coleman Counties       300         215.68      158.39
    Franken Counties       504         162.67      264.50

Total                     1585         624.59      702.98
    Coleman Counties       751         358.54      262.78
    Franken Counties       834         266.05      440.21

If each one of the 1,585 ballots listed within Franken's latest filing are opened and counted, Franken would gain about 78 votes. This extrapolation assumes a linear relation between the certified recount result on the county level and the inclusion of the listed absentee ballots. Absentee ballot counting in Hennepin County is delegated to each city, as such, our extrapolation uses the city totals from each applicable Hennepin County municipality as provided by the Franken campaign.

...

There were a plethora of other court filings released today, but filed prior to today, in addition to the information presented above. We'll start with a rather ambitious request by the Coleman campaign:

PLEASE TAKE NOTICE THAT at a time set by the Court Contestants will move the Court to enter a ruling applying the standards of Minn. Stat. §§ 203B.12 and 203B.24, as the Court has announced those standards, to all absentee ballots cast in the election for U.S. Senate to determine whether those ballots are legally cast votes. The motion is based on the accompanying Memorandum, Affidavit of James K. Langdon, and all the files, records, evidence in the record and the proceedings herein.

Dated: February 20, 2009

Source: Contestants' Notice of Motion and Motion via MNCourts.gov [PDF]

The Coleman campaign is essentially asking the Election Contest Court to reconsider every counted absentee ballot. This request has essentially no chance of being granted but it raises an interesting point none the less. The official recount guide states that the purpose of the recount "is not to determine if absentee ballots were properly accepted." It's certainly possible, even probable that some absentee ballots that were counted should not have been counted. The Coleman campaign does not however provide any empirical evidence. Without proof of wrongdoing, Coleman's assertion opposes Dep. Sec. Jim Gelbmann's testimony and the idea that "the decision of the local election officials should be assumed to be correct."

The Coleman campaign also presented a nine page memorandum supporting their aforementioned motion. I've posted the conclusion below:

...

CONCLUSION

Contestants do not support a remedy that would disenfranchise Minnesota voters whose ballots already have been counted, but the Court's current rulings dictate that result. All similarly situated voters must be treated consistently-and fairly. Elementary fairness as well as equal protection of the laws demands no less. Moreover, the Court is statutorily precluded from including illegal votes in determining who won the election.

Contestants accordingly respectfully request that the Court grant their Motion for Ruling Applying February 13,2009 Order regarding Minn. Stat. §§ 203B.12 and 203B.24 to all absentee ballots previously counted in this election.

Dated: February 20, 2009

Source: Contestants' Memorandum of Law in Support of Motion for Ruling Applying February 13 2009 Order to Previously Counted Absentee Ballots via MNCourts.gov [PDF]

Franken has either not filed a response, or the campaign's response is simply not yet listed on the litigation website.

The group of 61 petitioners represented by Charles Nauen has filed additional evidence and presented a new motion for summary judgment requesting the inclusion of nineteen previously denied petitioners. The entire motion for summary judgment is displayed below:

PETITIONERS' NOTICE OF MOTION AND

RENEWED MOTION FOR SUMMARY JUDGMENT

PLEASE TAKE NOTICE that as soon the parties may be heard, Petitioners Dennis Peterson, et. al. ("Petitioners"), through their attorneys, Lockridge Grindal Nauen P,L.L.P., will renew, and hereby renew, their motion to this Court, the Honorable Elizabeth A. Hayden, the Honorable Kurt 1. Marben, and the Honorable Denise D. Reilly, presiding, at the Minnesota Judicial Center, 25 Rev. Dr. Martin Luther King Jr. Boulevard, St. Paul, State of Minnesota, for the entry of an order granting summary judgment in their favor pursuant to Rule 56 of the Minnesota Rules of Civil Procedure.

Petitioners respectfully request this Court grant judgment as a matter of law in their favor as follows:

1. Directing that 19 Petitioners' absentee ballots shall be opened and counted immediately, and the total be declared and certified, for such use as might be appropriate by the United States Senate, this Court in the above-captioned matter, or any other proper use under law; and

2. Granting Petitioners such other relief as the Court deems just and appropriate.

Dated: February 20, 2009

Source: Petitioners Notice of Motion and Renewed Motion for Summary Judgment via MNCourts.gov [PDF]

The group of petitioners represented by Mr. Nauen is widely considered to be very Franken friendly for two reasons. First, Mr. Nauen seems to support the Democratic agenda based upon his contributions and secondly, the majority of the 61 petitioners are found somewhere on Franken's wrongfully rejected list. It's very unlikely that Coleman will gain votes based upon the potential inclusion of these nineteen ballots.

Our final court document was drafted by the Franken campaign last Wednesday, but was not filed until Friday. The first and last paragraphs of the memorandum are presented below:

A question has been raised regarding the form and specificity required for an offer of proof when the Court excludes evidence. Contestee Al Franken provides the following legal authority and argument to assist the Court. At the outset it should be noted that the purpose of an offer of proof is to create a record on which the trial court can make a ruling and to create and preserve a record upon which an appellate court may review lower court decisions. Thus, this Court certainly may and should allow Contestants to make an appropriate written or oral offer of proof for the purposes of creating a record for appellate court review, but it most assuredly has no duty whatsoever to allow, assist or facilitate the creation of a record to assist Contestants in a collateral attack on this Court, its decisions to date in this matter, or Minnesota's electoral system more generally. The suggestion that somehow different standards should be applied to an offer of proof on account of Contestants' apparent intention to file federal court litigation attacking this Court's decisions in this matter is seriously misplaced, misapprehends the purposes of an offer of proof and misstates applicable law.

...

The Court properly may require that an offer of proof be in the form of an oral or written summary by the attorney, rather than the testimony sought to be adduced. To avoid further waste of this Court's time, delay in the conclusion of this process and the seating of Minnesota's second United States Senator, and further cumulative testimony apparently designed to undermine the legitimacy of this election and this Court's process, Contestee respectfully submits that Contestants should be directed to make a written offer of proof, in whatever level of specificity they would like, but no further testimony should be entertained with respect to Contestants' dismissed equal protection claims.

Dated: February 18, 2009

Source: Memorandum of Law Regarding Form and Level of Specificity Required in an Offer of Proof via MNCourts.gov [PDF]

I'm not entirely sure of the exact intent of this filing, but it appears as though the Franken campaign is trying to limit the topics on which the Coleman campaign can call witnesses to the stand. The Franken campaign is requesting that the Coleman campaign be forced to present an offer of proof, (which upholds the presentation of evidence in the event of an appeal) instead of calling a witness to support any equal protection argument.

That's it for now, but I suspect another round of documents will be published tomorrow as the litigation resumes at 9 AM CT.

Update [2:33 AM CT]: Franken sent out another order to the Minnesota Media Monday afternoon which the litigation website eventually posted. The filiing is twenty-five page and is dated February 23rd:

The above-entitled matter came on for hearing before the Court on January 23, 2009, upon Contestee's Conditional Motion for Partial Summary Judgment on Certain of Contestants' Claims and on Contestee's Conditional Motion for Partial Summary Judgment on Certain of Contestee's Counterclaims. Counsel noted their appearances on the record. The Court having heard and read the arguments of counsel, and based upon the files, records, and proceedings herein, makes the following:

ORDER

1. Contestee's Conditional Motion for Partial Summary Judgment on Certain of Contestee's Counterclaims is GRANTED IN PART AND DENIED IN PART.

2. The following absentee ballots shall be provided to the Secretary of State at a date to be determined by the Court to be opened and counted at a date to be determined by the Court, and the total be declared and certified for such use as might be appropriate by the United States Senate, this Court, or any other proper use under law.

[Table identifying twelve individual voters and their associated county.]

3. Contestee's Conditional Motion for Partial Summary Judgment on Certain of Contestants' Claims is DENIED.

4. Any other relief not specifically ordered herein is DENIED.

5. The attached Memorandum is incorporated herein by reference.

...

j. Conclusion

For the aforementioned reasons, the Court grants in part and denies in part Contestee's Conditional Motion for Partial Summary Judgment on Certain of Contestee's Counterclaims and denies Contestee's Conditional Motion for Partial Summary Judgment on Certain of Contestants' Claims." Any other relief not specifically ordered herein is denied.

Source: Order Granting in Part and Denying in Part Contestee's Conditional Motions for Partial Summary Judgement via MNCourts.gov [PDF]

Of the twelve voters identified in the preceding order, nine of the names can be found in Franken's Exhibit X, while just one is listed in Exhibit Y. The other two voters were mentioned as part of Franken's original counterclaim addressing 792 specific voters by name.

It's impossible to know exactly which way these twelve ballots will fall. It seems slightly more likely that this set will favor Franken based upon his specific identification of these voters, although Coleman has also identified nine of these voters. In the end, we know that twelve more ballots will be opened and likely counted, so the speculation is irrelevant.

The Coleman campaign presented the following notice late Friday afternoon informing the Election Contest Court of their forthcoming motion to prevent the redaction of 933 wrongfully rejected absentee ballots:

PLEASE TAKE NOTICE THAT at a time set by the Court at its earliest convenience Contestants will seek a temporary restraining order pursuant to Minn. R. Civ. P. 65.02 enjoining the Secretary of State's Office from redacting the absentee ballot envelopes associated with the 933 ballots opened and counted on January 3, 2009. This Motion will be based on the accompanying memorandum and all the files, records and proceedings herein.

Dated: February 20, 2009

Source: Notice of Motion and Motion for Temporary Injunction via MNCourts.gov [PDF]

The Coleman campaign is simply requesting that each of the 933 wrongfully rejected absentee ballots remain individually identifiable. Their request is in opposition to the February 3rd stipulation instructing the SOS's Office to assimilate these ballots into the larger subset of all accepted absentee ballots. The Coleman campaign is seeking to halt the processing of that order.

A review of the original stipulation places the Coleman campaign in a somewhat hypocritical position, but the circumstances have changed. The Election Contest Court presented seven categories of absentee ballots which they deemed worthy of future consideration; he ECC also denied King Banaian's Testimony. In light of these prior events, this latest notice seems strategically plausible.

Deputy Secretary of State, Jim Gelbmann (who testified for three days) stated on Friday that about half of the 933 wrongfully rejected absentee ballots had already been redacted in accordance with the stipulation. These redactions are unlikely to impede Coleman's intention. The Coleman campaign has signified that approximately 100 of the 933 wrongfully rejected absentee ballots were actually accepted in opposition to the newly established categories.

I don't think the Coleman campaign solely intends to decrease their deficit as a result of this latest maneuver; they are trying to invalidate the process by which the entire set of once rejected absentee ballots were re-examined and eventually counted. If they are somehow able to prove that one of the 933 ballots was improperly included, they may very well be able to force the equal protection issue. They do not need the full set of 933 ballots to prove their assertion, if in fact their 100 vote statement is correct. I've prepared a few calculations to illustrate this point:

The output of each function represents the probability of an erroneously counted ballot occurring within the currently un-redacted set with respect to the potential number of erroneously counted ballots. The base case contains 466 un-redacted ballots, with respect to Mr. Gelbmann's statement, and 100/933 based upon the Coleman campaign's statement. Using the above calculations and the just mentioned inputs, there is a 100% chance that an erroneously counted absentee ballot will be contained within the remaining set of un-redacted ballots. I also did some other calculations to illustrate other possibilities for comparison. A graph is also provided below which details all of the possible combinations of error rates and un-redacted ballots:

The bottom line is this: if Coleman's request is granted and their error estimate is correct or even just partially correct, the already redacted ballots will play absolutely no role in their Equal Protection argument. If the examination occurs and no errors are found, there is a 69.7% chance that the singular error exists within the other half of already redacted ballots. If the motion is approved, this is a win-win for Coleman; he is either able to prove that inconsistencies occurred, or blame the lawful redaction for his troubles.

It is in Coleman's absolute best interest to ensure that this motion is granted. A few excerpts of the Coleman's argument are presented below:

INTRODUCTION

Pursuant to Minn. R. Civ. P. 65.02, Contestants seek a temporary injunction preventing the Secretary of State's Office from redacting the envelopes associated with the 933 ballots counted on January 3, 2009. The Court should preserve the status quo until it determines the impact of its February 13, 2009 Order on absentee ballots already counted in the election, including those counted on January 3, 2009.

...

ARGUMENT

Contestants seek the requested relief to preserve the status quo until the Court determines the impact of its February 13, 2009 Order on absentee ballots already counted in the election.

I. The Relationship Between The Parties Favors Issuance Of An Injunction

The parties are involved in an election contest to determine which party received the highest number of legally cast votes and is therefore entitled to receive the certificate of election. Which votes are in fact legally cast is at the very heart of the matter-and of the Court's charge. Contestants believe the Court must apply its February 13, 2009 Order to absentee ballots previously counted, including those removed from the envelopes at issue here.

II. Irreparable Harm Will Result If The Motion Is Not Granted

The Court's February 3,2009 Order directs the Secretary of State's Office to redact the identifying numbers from the ballot envelopes so that a particular ballot can no longer be tied to the envelope it came in. Without that identifying information, the Court will be unable to determine which ballot was in fact an illegally cast vote and should not be included in the count of legally cast votes, thus removing an important remedy that would be available if the Court applies its February 13, 2009 Order to absentee ballots that have already been counted.

III. Contestants Are Likely To Prevail On the Merits

...

IV. Public Interest Demands That Consistent Standards Be Consistently Applied

...

v. Administrative Burden On The Court Is Minimal

...

CONCLUSION

For the reasons set forth above, Contestants respectfully request that this Court issue a temporary injunction directing the Secretary of State's Office not to redact any information from the envelopes associated with the 933 ballots opened and counted on January 3,2009 pending further order of this Court.

Dated: February 20, 2009

Source: Memorandum in Support of Motion for Temporary Injunction via MNCourts.gov [PDF]

Franken also responded to Coleman's requested injunction by refuting each of Coleman's arguments:

Contestee Al Franken opposes Contestants' Motion for Temporary Injunction, The motion flies in the face of a Stipulation and Order freely entered into by the parties and affirmed by the Court. The Stipulation and Order settled and resolved one of Contestants' claims and furthered the strong public policy of ballot secrecy. Contestants' effort to renege on the stipulation they freely entered and eviscerate the binding order of this Court warrants the imposition of sanctions.

...

LEGAL ARGUMENT

Contestants' motion should be denied. The factors of Dahlberg Bros. v. Ford Motor Co., 137 N.W.2d 314 (Minn. 1965) all require this result:

1. The relationship between the parties strongly cuts against an injunction.

The relationship between the parties is governed by the Stipulation and Order of February 3, 2009. Contestants seek to breach the Stipulation, defy the Court Order entered on the stipulation, and make the Court a party to the breach.

2. Irreparable harm will result if the motion is granted.

As the Supreme Court recognized in its Order of December 24, 2008, entered at the request of both Contestants and Contestee herein, ballot secrecy is a paramount public policy. Minnesota law mandates secret ballots. See Minn. Stat. § 206.80 ("An electronic voting system may not be employed unless it: (1) permits every voter to vote in secret ...."); see also Application of Andersen, 119 N.W.2d 1,8 (1962) ("Procedural statutes governing elections are intended to safeguard the right of the people to express their preference in a free election by secret ballot and to have the results of the election governed by the votes so cast."); Minn. Stat. § 202A.18 (requiring secret ballots even for caucuses and conventions).

The 933 ballots should never have been numbered. On February 3, 2009, recognizing this public policy, Contestants and Contestee freely entered into a Stipulation that the numbers would be removed.

3. Contestants will not prevail on the merits.

...

4. The public interest requires that the February 3 Order be enforced.

...

5. The burden on the Court by this motion is not administrative, but goes directly to the heart of the integrity of the judicial process.

...

CONCLUSION

The motion should be denied.

Contestee advised counsel for the Contestant that this motion is baseless and warrants the imposition of sanctions. Contestee requests that the Court establish a briefing and hearing schedule so that Contestee may bring on a motion under Minn. R. Civ. P. 11 and Minn. Stat. Section 549.211.

Source: Contestee's Opposition to Motion for Temporary Injunction via MNCourts.gov [PDF]

After all of this, I find it unlikely that the Election Contest Court will override Coleman's once prejudiced dismissal of this very topic.

Franken was also supposed to present his updated list of wrongfully rejected absentee ballots on Saturday; he did apparently do this, but a court filing is unavailable. The PioneerPress was apparently given access to the document containing 1,585 ballots, 781 of which the Coleman campaign has already identified, but they thought it was more important to talk about "snark" within the document than to actually present the document; nice work PioneerPress. (It's only a matter of time before they join the likes of their now bankrupt competitor, the StarTribune.)

Of the 1,585 presented by Franken 804 were not already identified by Coleman; this number is actually slightly more than the 792 he had already presented. This could mean several things, but it is impossible to definitively conclude anything without actually looking at the list which, should at the vary latest be available on Monday when the ECC resumes.

A number of court documents have been filed and then subsequently posted to the litigation page within the past two days; some are important, others not so much. I'll cover the documents chronologically from oldest to newest. The first document is probably the least important, but it's worth mentioning for the historical value.

The Coleman campaign filed the first post-categorization motion essentially asking the Election Contest Court to reconsider their decision regarding categorization. An overview of Coleman's arguement is presented below; the document was drafted on February 16th and then filled with the court on February 17th:

Dear Judges Hayden, Reilly and Marben:

We write pursuant to Minn.R. Gen. Prac. 115.11 to request the Court's permission to file a motion for reconsideration of the Court's February 13, 2009 Order Following Hearing. We respectfully believe the Court has created a significant problem by adopting standards to be applied to the remaining unopened absentee ballots which are materially different than those which have been applied previously-by election officials, by recount personnel, by the Supreme Court and, indeed, by this Court itself--to absentee ballots already opened and counted. If the Court maintains the standards set forth in that ruling, it will serve only to further exacerbate inconsistencies and inequities in the process and the already-existing equal protection problem. Let us explain.

...

On February 3,2009, when the parties stipulated and the Court signed an order that all of the 933 ballots opened on January 3, 2009 were "properly and lawfully opened and counted," even though it appears scores of them do not meet these standards.

As a result, there are certainly hundreds, and likely thousands, of votes already counted that under the Court's February 13,2009 Order were not legally cast votes-meaning that the recount included a material number of illegally cast votes which should not have been included in the totals the Canvassing Board certified. In our motion to reconsider, we will provide specific and numerous example ballots to the Court so that it may under the statutory power granted it for this contest correct these inconsistencies.

We believe the standard this Court applies to determine which of the remaining rejected absentee ballots is a legally cast vote must be consistent with the standards this Court has already applied to other ballots as well as the same standard applied to the thousands of absentee ballots already opened and counted by the counties. The earlier standards consistently applied include, as the testimony of county officials has made clear, that whether a voter had otherwise voted in the election was determined solely with reference to the roster in his or her precinct and that, among other things, many counties did not check the registration of the witness and some did not. Moreover, the Court should consistently apply the same methods used by the counties and municipalities on election day to determine whether an absentee ballot should be accepted.

One thing is clear about American elections: all voters must be treated equally. To apply different standards to different absentee voters is prohibited by the Constitution. In light of these facts and circumstances, which the Court may not have had the opportunity to consider, Contestants respectfully seek permission to file a motion, with attached exhibits, seeking reconsideration of the Court's February 13, 2009 ruling.

Source: Letter Requesting Permission to File a Motion for Reconsideration via MNCourts.gov [PDF]

The Coleman campaign presented a clever, yet reused argument suggesting that some ballots were actually improperly counted and should therefore be uncounted as to not disenfranchise those who voted properly. This course of reasoning presents another angle to the Equal Protection argument while attempting to directly reduce their vote deficit.

Unfortunately for the Coleman campaign, the Election Contest Court denied the entirety of their request. The full text of the order is presented below:

The above-captioned matter came before the Court. on February 16, 2009. pursuant to Contestants' request to bring a motion to reconsider the Court's February 13, 2009, Order. Based upon the contents of the file, the Court makes the following:

ORDER

1. Respondent's request to bring a motion to reconsider the Court's February 13, 2009 Order is DENIED.

Dated: February 18, 2009

Source: Respondent's Request to Bring a Motion to Reconsider Order is Denied via MNCourts.gov [PDF]

I don't necessarily think Coleman's premise is wrong, as there probably were improperly accepted ballots, but he faces the burden of proving this assertion. It is just as difficult to check 3 million ballots for improper rejection as it is improper acceptance and I don't think the Election Contest Court was prepared to order a full scale examination into Coleman's premise without some empirical evidence. I think its also worth noting that the 933 wrongfully rejected absentee ballots have been assimilated into the larger subset of absentee ballots and are not individually identifiable; it would be impossible to reexamine only those 933 ballots.

The next document was filed by Franken and focuses on their opposition to the Equal Protection argument presented by Coleman. The Franken campaign mainly asserts that the idea of Equal Protection applies to a lesser degree when absentee ballots are concerned; they cite a 2003 ruling that established absentee voting as a privilege and not a right in the state of Minnesota. The first and last paragraphs of the aforementioned memorandum are presented below:

Contestants continue to occupy this Court's time and to delay the seating of Minnesota's second senator with claims that already have been argued and rejected. Contestants' most recent attempt to advance their purported Equal Protection claim comes in the form of an offer of proof into evidence. Contestee respectfully request that this Court accept Contestants' offer of proof for purposes of preserving the record and confirm its prior rulings rejecting Contestants' Equal Protection claim as a matter of law, both on substantive and procedural grounds.

...

On at least two, independent grounds, therefore, Contestants' Equal Protection claim fails as a matter of law. Additional independent reasons for its failure are set forth in Contestee's Memorandum of Law in Opposition to Contestants' Motion for Summary Judgment, which Contestee incorporates herein. For the foregoing reasons, Contestee respectfully requests that the Court accept Contestants offer of proof for appellate purposes and confirm this Court's prior rulings that Contestants' Equal Protection claim is deficient as a matter of law, both on substantive and procedural grounds.

Dated: February 18, 2009.

Source: Memorandum of Law in Opposition to Offer of Proof via MNCourts.gov [PDF]

This next filing is more curious than important. Ben Ginsberg, an attorney for Coleman, has asked the Election Contest Court to afford him a temporary license to practice law in the state of Minnesota; Mr. Ginsberg is a member of the DC Bar, but he does not currently posses the credentials required to actively participate in the court room proceedings. Mr. Ginsberg has often been present within the court room, but he has never been the empowered representation. Mr. Ginsberg's request to the court is posted below:

Contestants Cullen Sheehan and Norm Coleman hereby move for permission for Benjamin L. Ginsberg, attorney with Patton Boggs LLP, to practice before this Court pro hac vice in this matter. This Motion is based upon Rule 5 of the General Rules of Practice for the District Courts, the accompanying affidavit of Benjamin L. Ginsberg and the files and proceedings herein.

February 18, 2008

Source: Contestants Motion for Admission Pro Hac Vice of Benjamin L. Ginsberg via MNCourts.gov [PDF]

There is essentially no reason for this request to be denied; three attorneys representing Franken presented a similar scenario and the court granted them their request on January 12th. Assuming Mr. Ginsberg is granted his request, it remains to be see how he will contribute to the daily proceedings.

The final filing, and the most important, deals with King Banaian's testimony. The court finally reached a decision:

The above-entitled matter came on for hearing before the Court on February 12, 2009 upon a Motion in Limine by Contestee to Exclude Testimony of King Banaian. Counsel noted their appearances on the record. The Court having heard and read the arguments of counsel, and based upon the files, records, and proceedings herein, makes the following:

ORDER

1. Contestee's Motion in Limine to Exclude Testimony of King Banaian is GRANTED.

2. Any other relief not specifically provided herein is DENIED.

3. The attached Memorandum is incorporated herein by reference.

Dated: Feb 18, 2009

...

III. Analysis [from the attached memorandum]

The only question that can be decided in an election contest is which party received the highest number of legally cast votes, and therefore is entitled to receive the certificate of election. Minn. Stat. § 209.12. The Court will be reviewing all ballots presented according to the uniform standard contained in Minnesota Statues Chapter 203B. It is irrelevant whether there were irregularities between the counties in applying Minnesota Statutes § 203B.12, subd. 2. prior to this election contest. The Court does not believe Banaian's testimony would assist in determining the issues properly before it.

Source: Order on Contestee's Motion in Limine to Exclude Testimony of King Banaian via MNCourts.gov [PDF]

I don't really know if this decision inherently alters Coleman's position, but we can at least definitely say that the King Banaian saga is over. The issue may resurface during the appeals process if Coleman is unable to overcome the current deficit. This order also marks the first occasion in the entire litigation in which a motion, by either candidate, has been granted outright.

The next step for Coleman may be the Equal Protection argument, but remember, there are still other unresolved issues; the double counting issue still remains unresolved along with some other, more minor counting issues. The court has focused so much of their time on the absentee ballot situation that the double counting issue has been almost entirely ignored. The resolution of the absentee ballot problem may however lead to the resolution of the double counting issue.

The Election Contest Court will resume tomorrow and King Banaian won't be in attendance.

If you've read my past several articles, the name King Banaian probably sounds vaguely familiar; if you haven't, prepare to be enlightened. I'll try and let the court documents do the talking, but I'll have to fill in some of the blanks.

Before any analysis occurs, I better provide some background on Professor King Banaian. Prof. Banaian is an economics professor at St. Cloud State University in Minnesota. He is also a contributor to the very conservative SCSU Scholars and co-hosted a radio show with Michael Brodkorb of MinnesotaDemocratsExposed.com. King Banaian is not an unbiased observer, he is a Republican.

The saga all began on January 20th, as described within King Banaian's deposition; the document is dated January 27th, but was filed with the court on January 29th:

EXAMINATION
BY MR. BURMAN:

Q. Professor Banaian, my name is Dave Burman. I'm one of the lawyers for Al Franken, the contestee in the election contest that's going on.

...

Q. You are a social scientist, aren't you?

A. That's correct.

...

Q. Who was it that gave you your assignment on the 20th, or whenever in advance of the 20th you got it?

A. The attorneys from the Coleman campaign had contacted me, in particular, Mr. Trimble.

Q. And when did Mr. Trimble first contact you?

A. I would say noon on the 20th.

...

Q. And it came with an e-mail from Mr. Trimble?

A. Yes, that's correct.

Source: Affidavit of Richard D Snyder Regarding Motion in Limine via MNCourts.gov [PDF]

The Coleman campaign sent Prof. Banaian a series of spreadsheets containing county level data pertaining to rejected absentee ballots on January 20th; he later stated that he verified some of the data using a spreadsheet posted on the Minnesota Secretary of State's website. The exact contents of the SOS provided spreadsheet remain unclear, but there does not appear to be a publicly available rejected absentee ballots table. I have however placed an inquiry with the Secretary of State's office regarding the context of Prof. Banaian's testimony.

Despite Prof. Banaian's own classification as a social scientist, he also testified to his qualifications as a statistical analyst:

Q. Do you consider yourself an expert in statistical analysis?

A. I consider myself a practitioner of statistical analysis. Expert, I believe -- I have difficulty with that word.

Q. Why is that?

A. I have - I have taken several courses in statistics. There are, obviously, people who have degrees in statistics, Ph.D.s even in statistics. It's fair to say that they will call themselves experts.

I -- I call myself a long-time practitioner of -- of statistical analysis. I provide data analysis for the St. Cloud community, and I teach data analysis to my students.

Q. As I understand it, as long as I picked the right test of those offered by Excel, even somebody as unschooled as myself could have, basically, replicated what you've done in Exhibit 2?

A. If you picked the right test.

Q. And the binomial approach is about the most basic of statistical tests, is it not?

A. Am I being asked my opinion?

Q. Yes.

A. In my opinion, most people by default go to the normal distribution. The bell curve is the most well-known distribution in statistics.

Source: Affidavit of Richard D Snyder Regarding Motion in Limine via MNCourts.gov [PDF]

Prof. Banaian stated that he used a binomial distribution to determine potential anomalies in rejection rates; he also experimented with a Poisson distribution and a Chi-Square test. Prof. Banaian also asserted that each of these regression techniques "require homogeneity of variance;" he did not consider the "socioeconomic qualitative characteristics of people who fill out absentee ballots." In turn, his analysis is based entirely upon the deviations present within the given distribution.

Q. Then there's a column that says -- and I can't tell whether the heading reject too many is just for one column or two. Do you know offhand?

A. It is for two.

Q. So the yes, yes for Aitkin County means that Aitkin rejected too many compared to what you expected in a random distribution?

A. Yes, that's correct.

Q. And is the first column based on the 5 percent calculation and the second on the 1 percent?

A. Yes, that's correct.

Source: Affidavit of Richard D Snyder Regarding Motion in Limine via MNCourts.gov [PDF]

Based upon my own calculations, Aitkin's rejection rate places 4th among the 132 regions responsible for collecting, categorizing and counting absentee ballots; Hennepin County passes this responsibility onto each municipality. My table uses rejected absentee ballot data provided by each campaign within a multitude of Court filings. The Coleman campaign has identified 4,458 absentee ballots and their associated voters by name, while Franken has listed 792.

The exact data available to Prof. Banaian remains unknown; some of it was provided by the Coleman campaign, and some of it was obtained through the MN Secretary of State's website.

The rejection pattern of Aitkin County seem to be irregular, but this irregularity may or may not be relevant. If you take any set of data and apply any distribution model, you will get outliers; the purpose of a distribution function is to identify a certain number of mathematically significant outliers, not logically significant. The existence of outliers, in and of itself, is completely meaningless without an analysis of their context. Prof. Banaian would later offer a potential explanation for the outliers he identified:

Q. So at least using this data there were between 15 and 23 counties where there seemed to be differences that couldn't be explained by random variation?

A. That's correct.

Q. But we don't know what caused those?

A. Yes, that's correct.

Q. Might be that they had a disproportionate number of people who were blind or didn't see very well and didn't sign in the right place?

MR. RALPH: Objection, form.
BY MR. BURMAN:

Q. That's a possible explanation for those counties?

A. It's possible, yes.

Q. And nothing that you've done tells us whether or not the excess rejections were contrary to law or incorrect in any way?

A. No.

Source: Affidavit of Richard D Snyder Regarding Motion in Limine via MNCourts.gov [PDF]

Prof. Banaian essentially stated that he was unable to explain any correlation between the random variations he identified and any procedural or demographic information inherent to any of the counties he analyzed. It is very difficult to find context for comparison because applicable historic data is scarce. There is however some county level data available from the 2004 Washington State Gubernatorial statewide recount; King County, containing Seattle appears to have an improper re-rejection rate of about 66%, but King County is not representative of all counties in Washington, and certainly not Minnesota.

The Franken campaign took issue with Prof. Banaian's analysis by filing a motion on January 29th to suppress any potential testimony:

MOTION

In Contestants' opening statement, they announced that they would not be calling a social scientist to testify to alleged statistical differences between counties. Now they have changed their mind and wish to call Prof. King Banaian, an economics professor and political commentator. They were right before, and wrong now. Contestee moves to exclude the testimony of Prof. Banaian.

...

Prof Banaian should be excluded for a number of reasons. First is timeliness. The proposed witness was first contacted by Contestants on January 20 (Banaian Dep. at 29, line 6) (attached to Snyder Affidavit). He did not reach "any type of conclusion" until January 22 (id. at 26, line 19), a day after the expert disclosure deadline imposed by the Court, and he was not made available for deposition until after trial had already started, despite his earlier availability. Jd. at 79, line 11, to 80, line 4. The court is within its discretion to exclude the witness for this reason alone.

Banaian has not qualified himself as an expert on the issue he presents. He admits that he is not necessarily an "expert" in statistics,

[The second excerpt contained within this article is then referenced as proof of the previous assertion.]

...

Similarly, his opinions are not on a subject matter requiring expert testimony. He opines on the rejection rates of absentee ballots in 87 counties. The rejection rates are known facts, ascertainable by a simple calculation. Expert testimony is not required on that factual issue, and the only reason Contestants want to have Prof. Banaian testify is to suggest that there is something behind the variations even though he does not have the expertise and has not even attempted to do the analysis to suggest that.

Source: Motion - Contestees Opposition to Contestants Motion in Limine to Exclude Testimony of King Banaian via MNCourts.gov [PDF]

The Coleman campaign then responded to Franken's above motion on February 10th, by addressing each point of opposition:

INTRODUCTION

Contestants plan to call Professor King Banaian as an expert to testify that, based on the application of well-established statistical methods, many counties rejected more absentee ballots than expected from the statewide rate. This conclusion is not obvious on the face of the data, and expert testimony is appropriate to support it. Professor Banaian's proposed testimony will rule out, as a matter of statistical analysis, the possibility that the variation in rejection rates across counties was the result of pure chance. As such, his testimony will assist the Court as it considers the equal protection and fairness issue underlying its determination of which ballots are in fact legally cast votes.

...

Contestee disparages Professor Banaian's selection of the binomial distribution and chi-square tests, Mot. at 4, but "both the chi-square and binomial tests of statistical significance are recognized by courts as being valid means of assessing the representativeness of a sample." Reynolds v. Giuliani, 118 F. Supp.2d 352,374 (S.D.N.Y. 2000) (citing cases). The binomial and chi-square tests are routinely admitted in employment discrimination cases to show disparities in treatment of protected groups. See, e.g., id.; Barnes v. GenCorp Inc., 896 F.2d 1457, 1463, 1466 (6th Cir. 1990); Coates v. Johnson & Johnson, 756 F.2d 524, 536 n.11 (7th Cir. 1985); Lilly v. Harris-Teeter Supermarket, 720 F.2d 326,336 n.18 (4th Cir. 1983).

The binomial and chi-square tests would be helpful here for the same reasons they are helpful in employment discrimination cases:

When a plaintiff demonstrates a significant statistical disparity in the discharge rate, he or she has provided strong evidence that chance alone is not the cause of the discharge pattern. The statistics do not and cannot determine whether the more likely cause is the defendant's bias or a legitimate selection criterion.

Barnes, 896 F.2d at 1468. Employment statistics may thus establish a prima facie case, subject to rebuttal or proof by additional evidence. Id. at 1466; Lilly, 720 F.2d at 336 n.20. Here, Professor Banaian's proposed testimony would rule out chance as a possible explanation of the different rejection rates and lay a foundation for the Court to consider inconsistent application of the statutory standard as the cause.

...

Contestee argues that Professor Banaian should be disqualified for hesitating to proclaim himself an "expert in statistical analysis," Snyder Aff. at 37:2-3, but an expert's modesty is not a basis for excluding him. Although Professor Banaian does not have a degree in statistics, he testified that he has a Ph.D. in economics, teaches economics and data analysis to college students, frequently uses statistical analysis in his work, and considers himself a "long-time practitioner of statistical analysis." Id. at 37:4-17. Professor Banaian has been a professor of economics at St. Cloud State University for nearly 25 years, and he has numerous data-intensive publications. Affidavit of F. Matthew Ralph ("Ralph Aff.") Ex. 5.

...

(quoting Dennie v. Metropolitan Medical Ctr., 387 N.W.2d 401, 405 (Minn. 1986) ("The general rule in Minnesota is expert testimony should be suppressed for failure to make a timely disclosure of the expert's identity only where 'counsel's dereliction ... is inexcusable and results in disadvantage to his opponent.").

Contestee suffered no prejudice whatsoever. Contestee does not claim that Professor Banaian's deposition testimony differed prejudicially from his disclosed opinion, because it did not. Compare Ralph Aff. Ex. 5, with Snyder Aff. at 12:20-13:5. Contestee complains that he was obliged to depose Professor Banaian after trial commenced, but he does not explain how the timing of the deposition harmed him, especially when it occurred several days before Professor Banaian's trial testimony. In sum, Contestants' disclosure of Professor Banaian was timely, and Contestee has suffered no prejudice whatsoever to justify exclusion of Professor Banaian's trial testimony.

Source: Contestants' Memorandum of Law in Opposition to Motion in Limine to Exclude Testimony of Professor King Banaian via MNCourts.gov [PDF]

It's interesting to note that absentee voting in Minnesota is considered a privilege and not a right.

Franken then responded to Coleman's response on February 11th; the memorandum presents two main ideas. First, the Franken campaign asserts that rejection rates are irrelevant to the Election Contest Court's duty and secondly, they stated that the techniques used by Prof. Banaian are uneffective:

I. INTRODUCTION

Contestee Al Franken respectfully submits that the Motion in Limine to Exclude Testimony of King Banaian ("Motion in Limine") should be granted. As his deposition transcript makes plain, Professor Banaian's proposed testimony is irrelevant to the only proper question before the Court: which candidate received the greatest number of votes that were "legally cast" in the 2008 U.S. Senate election. Evidence of alleged statistical differences in rejection rates between Minnesota counties is especially irrelevant in light of Professor Banaian's own admitted inability to offer any evidence, testimony or opinion on the underlying cause for the observed differences between the counties. As a result, this evidence is irrelevant under Minn. R. Evid 402 and 702. It would add nothing to this already over-burdened litigation except additional cost, delay, and confusion, and should also be excluded under Rule 403.

...

For starters, the task before the Court is to determine which of the two candidates received the highest number of votes legally cast in this election. The relative rejection rates between counties sheds no light on this subject. A rejected absentee ballot either was, or was not, properly rejected and the fact that it was or was not rejected by a county with a higher or lower rate of rejection that its neighboring county (or even as compared to all of the other counties) hardly makes that rejection any more or less wrongful or the vote more or less "legally cast." Rejection rates by county are, in short, simply irrelevant to the task before this Court.

Moreover, the use of relatively unsophisticated binomial distribution analysis and chi square tests are hardly the preferred means of statistical proof in discrimination cases. Instead, such rudimentary statistical tests are frequently rejected in favor of a regression analysis that can eliminate other causal explanations for observed differences - precisely the analysis that Professor Banaian admits that he cannot offer.

Source: Contestee's Reply Memorandum in Support of His Motion in Limine to Exclude Testimony of King Banaian via MNCourts.gov [PDF]

The King Banaian issue is next in the Election Contest Court's queue, but they may have already addressed it's resolution. We know the Election Contest Court canceled twelve of their nineteen categories last Friday, but they also asserted the accuracy of Minnesota's vote counting system; from the introduction of the memorandum attached to the Order Establishing Hearing on Motions:

The facts presented thus far do not show a wholesale disenfranchisement of absentee voters in the 2008 general election. Of the approximately 286,000 absentee ballots cast by voters, roughly 4,800 are at issue in this contest and remain unopened and uncounted. This is less than 2% of the absentee ballots cast in the general election. Further, the Court notes that, many of the voters whose absentee ballots remain unopened may have cast ballots that have already been counted either because they voted in person on Election Day or they submitted a subsequent absentee ballot that was opened and counted. These voters were not disenfranchised by the rejection of their absentee ballots.

...

All rejected absentee ballots were reviewed both on Election Day and through the Supreme Court review process. The Court is confident that although it may discover certain additional ballots that were legally cast under relevant law, there is no systemic problem of disenfranchisement in the state's election system, including in its absentee-balloting procedures.

Source: Order Following Hearing via MNCourts.gov [PDF]

Based upon the above expression of the Election Contest County, it will be interesting to see if the Coleman campaign continues to push for the testimony of Professor King Banaian.

Last Tuesday, the Election Contest Court released an Order Establishing Hearing on Motions in the attempt of "streamlining" the absentee ballot review process. The ECC presented 19 categories of absentee ballots and directed the parties to submit a briefing with regard to these 19 categories. I've already covered each campaigns' submission, but now it's time to cover the court's order:

This matter came before the Court on arguments on February 12, 2009. After consideration of the arguments of counsel, the written submission of the parties, and the pleadings in the case, IT IS HEREBY ORDERED:

1. The Court shall not order the opening and counting of ballots that fall into the following categories because such ballots are not legally cast under relevant law:

1. An absentee ballot submitted by a voter in an absentee ballot return envelope on which the voter's address is not the same as on the absentee ballot application. (Court's Order of February 10, 2009 at § A.2.)

2. An absentee ballot submitted by a voter in an absentee ballot return envelope in which the witness certification on the absentee ballot return envelope is signed by a person identified as a notary public but no notarial' seal or stamp is affixed to the absentee ballot return envelope. (Id. at § A.3.)

3. An absentee ballot submitted by a non-registered voter. (Id. at §§ A.4, A.10 & A.18.)

4. An absentee ballot submitted by a voter in an absentee ballot return envelope in which the voter failed to sign the absentee ballot return envelope. (Id. at § A.7.)

5. An absentee ballot submitted by a voter whose absentee ballot application does not contain the voter's signature. (Id. at § A.5.)

6. An absentee ballot submitted by a voter whose absentee ballot application was signed by another unless the absentee ballot application was assigned by another individual in accordance with Minnesota Statute § 645.44, subd, 14. (Id. at. § A.11.)

7. A UOCAVA ballot received by election officials after the deadline for receipt of absentee ballots. (Id. at § A.13.)

8. An absentee ballot dropped off in-person by the voter on Election Day. (Id. at § A.14.)

9. An absentee ballot dropped off by a proper agent on Election Day but after the statutory deadline for delivery. (Id. at § A.15.)

10. A ballot submitted by a voter who was not registered to vote within the precinct in which he or she resides. (Id. at § A.19.)

2. The attached Memorandum is incorporated as if fully set forth herein.

Dated: Feb 13, 2009

Source: Order Following Hearing via MNCourts.gov [PDF]

The proceeding order, by the ECC, eliminated twelve of the nineteen previously outlined categories. The remaining six categories are presented below:

1. An absentee ballot returned by a non-registered voter in an absentee ballot return envelope on which no box in the proof of residence portion of the absentee ballot return envelope is checked by the witness.

6. A UOCAVA ballot submitted where there is no evidence that the voter submitted a Federal Post Card Application or absentee ballot application.

8. An absentee ballot cast by a voter whose absentee ballot application does not contain a signature.

9. An absentee ballot cast by a voter where there is no independent evidence that the voter completed an absentee ballot application.

12. An absentee ballot in an absentee ballot return envelope in which the witness certification is signed by a non-notary witness who failed to provide a street address.

16. An absentee ballot within a non-registered voter absentee ballot return envelope on which the voter failed to sign the certification's signature box but did sign the absentee ballot return envelope elsewhere.

17. An absentee ballot cast by a voter who was not registered to vote in the precinct encompassing the voter's address on the absentee ballot return envelope and absentee ballot application.

Source: Order Establish Hearing on Motions via MNCourts.gov [PDF]

The exact number of affected ballots is not immediately apparent, but this order will further restrict each candidate's absentee ballot universe. The order will likely affect Coleman more than Franken, based upon the discrepancy of reconsideration requests. Coleman has identified 4,458 absentee ballots and their associated voters by name, while Franken has listed 792.

On Wednesday, the Election Contest Court asked each campaign to "streamline" the absentee ballot process by categorizing the currently rejected ballots into 19 separate divisions; I briefly covered this topic in a previous article. Then on Thursday, the ECC held a hearing, beginning at 1 PM CT, regarding each campaign's submission with regard to the ECC's aforementioned Order Establishing Hearing on Motions. The ECC has not yet responded to Thursday's proceedings.

We'll start be focusing on Franken's submission, which was filed with the court on February 11th. The complete document totals 27 pages and references each of the 19 categories, as outlined by the Election Contest Court, within the Analysis section. I have excerpted the conclusion, in it's entirety below:

III. CONCLUSION

For the foregoing reasons, Contestee Franken respectfully requests the Court rule as a matter of law that certain ballots cannot be opened and, moreover, that in the absence of individualized evidence satisfying the statutory noncompliance bar, evidence is excluded if it relates only to ballots that cannot be counted (or in the case of missing registration, opened and checked).

Dated: February 11, 2009.

Source: Memorandum of Law in Support of Contestee Franken's Motion in Limine and Offer of Proof via MNCourts.gov [PDF]

Having read the complete document, the conclusion essentially reflects the tone and reasoning presented within the body. The Franken campaign never explicitly asks for any of the ballots contained within the 19 categories to be counted. Instead, their submission is littered with legal references and past precedences. The Franken campaign would ideally prefer to exclude each vote, from each of the 19 categories but they've realized that this result is probably unlawful and politically unfeasible; instead they've accepted the mantra of ensuring that only valid votes are counted.

The Coleman campaign has taken an entirely different approach in their submission filed on February 12th. I've posted the Coleman conclusion in it's entirety:

CONCLUSION

For the reasons set forth above and based on the evidence that has been and will be presented at trial, Contestants respectfully request that the Court order that previously rejected absentee ballots in all categories identified above (except Sections 3, 15 and 18) be opened and, subject to confirmation by the Secretary of State that these voters are registered and did not already cast a ballot that was counted in the 2008 general election, counted.

Dated: February 11, 2009

Source: Contestants' Memorandum of Law in Support of Acceptance by Category of Improperly Rejected Absentee Ballots via MNCourts.gov [PDF]

The Coleman campaign has essentially asked that 16 of the 19 categories be opened, verified and then subsequently counted. Their memorandum is also filed with legal references, but unlike the Franken submission, they state that each applicable category should be counted. Again, the conclusion of the Coleman memorandum is very representative of the document as a whole, without the numerous legal references.

The Election Contest Court will resume on Friday at 9 AM CT and adjourn early, probably around 12:30 PM CT. The court will then reconvene on Monday February 16th for a "Motion Day." On Monday, the campaigns will not be allowed to call witnesses, but they will be able to present motions and arguments for the ECC's consideration. I would then presume that the ECC would issue a series of rulings later that evening; depending on the direction of these proceedings, Monday could be decisive day for either campaign.

One other area of contention does however remain; the testimony of King Banian, an economic professor at St. Cloud State University. The Coleman campaign initially asked Professor Banian to present statistical evidence regarding potential, absentee ballot anomalies on January 27th; the Franken campaign then objected and the saga began. I initially covered this topic on Tuesday, but the issue runs much deeper than my brief synopsis. I intend to cover this scenario in much greater detail, while providing a statistical model of my own within the next few days.

A few days ago I wrote about Norm Coleman's list of potentially wrongfully rejected absentee ballots by presenting a spreadsheet and a series of extrapolations. I've since updated the spreadsheet [csv] and recompiled the extrapolations using the Coleman provided breakdown of Hennepin County:

Download the complete table: PDF 108 KB

I find it curious that the Coleman campaign only separated regions within Hennepin County, but the table below seems to explain why:

   Scenario                               Coleman Net
   (1) 100% of Coleman's List Accepted:       44.80
   (2) Only Counties that Coleman Won:       368.87
   (3) 100% Accepted with 5% Coleman Bias:   267.70
   (4) Coleman Counties with 5% Bias:        509.97

   Listed from Franken Regions:               1,636
   Listed from Coleman Regions:               2,822
   Total:                                     4,458

Using our previous compilation as a baseline, the Coleman campaign is able to present a more mathematically appealing argument by differentiating between the various regions within Hennepin County. This separation, which I failed to take into account originally, places roughly 950 additional ballots into regions favorable to Coleman while subtracting nearly 850 from Franken friendly territory.

Coleman will likely gain votes from these 4,458 ballots, but the exact quantity remains to be seen; it's also likely that Franken will submit a similar set of ballots, so this difference may be offset.

Now onto a different front. There was news yesterday regarding the intervention of the seven petitioners represented by Bruce D. Kennedy; today brings an order regarding the group of 61 represented by Chris Nauen:

This matter comes before the Court on Petitioners Dennis Peterson, et. al.'s (''Petitioners'') motion for summary judgment. After consideration of the arguments of counsel, the written submission of the parties, and the pleadings in the case. IT IS HEREBY ORDERED:

1. Petitioners' Motion for Summary Judgment is granted in part and denied in part.

2. The following absentee ballots shall be provided to the Secretary of State at a date to be determined by the Court to be opened and counted at a date to be determined by the Court, and the total be declared and certified for such use as might be appropriate by the United States Senate, this Court, or any other proper use under law.

[List of 24 voter's and their associated counties]

3. The absentee ballot of Roxanna Saad of Dakota County shall be provided to the Secretary of State at a date to be determined by the Court to open the secrecy envelope to determine whether it contains a complete voter registration application. In the event that a complete voter registration application is found within the secrecy envelope, Ms. Saad's absentee ballot shall be opened and counted in accordance with section 2 of this Order.

4. The attached Memorandum is incorporated as if fully set forth herein.

5. Any requested relief not specifically granted herein is denied.

Source: Order Granting in Part and Denying in Part Petitioners Motion for Summary Judgment via MNCourts.gov [PDF]

In short, the court agreed to open and review 24 of the 61 absentee ballots listed within Mr. Nauen's motion for intervention. The court was not convinced that the other 36 ballots merited inclusion based upon the evidence submitted. The Election Contest Court did leave the door open for further evidence, but at the moment, these 36 ballots will not be counted.

The Election Contest Court resumes tomorrow at 9 AM CT, with an important deadline set at 4 PM CT:

A. In order to streamline proceedings in this action, the parties are directed to submit briefing by 4:00 p.m. on Wednesday, February 11, 2009 on whether the ballots in the following categories are not legally cast under relevant law:

[Listing of nineteen categories.]

B. Hearing on the parties' submissions shall be at 1:00 p.m. on Thursday, February 12,2009.

C. Hearing on Contestants' Motion for Class Certification and Contestee's Motion in Limine to Exclude Testimony of Professor King Banian shall proceed thereafter.

Source: Order Establish Hearing on Motions via MNCourts.gov [PDF]

Professor King Banian teaches at St. Cloud State University and is a member of SCSU Scholars. If you recall, this group released a poll on October 22nd showing 21 percent of all Minnesotans as still undecided in the Senate race. The Coleman campaign has asked Prof. Banian to use his background in statistics to analyze the rejection rate of absentee ballots across Minnesota's 87 counties; a tall order, but the Coleman campaign has nothing to lose in trying.

The Senate Litigation website finally uploaded the correct version of the Election Contest Court's order regarding the intervention of seven voters represented by Bruce D. Kennedy:

The above-entitled matter came on for hearing before the Court on January 30, 2009, upon motion for leave to intervene in this election contest filed by seven voters. Appearances were noted for the record. The Court having heard and read the arguments of counsel, and based upon the files, records, and proceedings herein, makes the following:

ORDER

1. The Motion for Leave to Intervene is DENIED.

2. Any other relief not specifically ordered herein is DENIED.

3. The attached memorandum is incorporated as is fully set forth herein.

[From the attached memorandum:]

The Court notes that the procedure under § 204B.44 remains open and available to the seven voters who seek to intervene in this election contest.

Source: Order on Motion for Leave to Intervene via MNCourts.gov [PDF]

It appears as though these seven voters will have to wait a little longer before their currently rejected absentee ballots qualify for reconsideration. Once the intervention is refiled, the Election Contest Court will likely heed their request. In fact it seems likely that the other intervention, with 61 voters, is simply being delayed until both interventions can be addressed at the same time.

I should also mention that the likely outcome of other 61 interventioners is less mysterious; this group was established by the Franken campaign and is represented by Charlie Nauen, a Democrat.

The original intervention request from Bruce D. Kennedy contains the names of these seven voters. Using our recent compilation of Coleman's Rejected Absentee List, we may be able to determine or at least estimate the allegiance of each voter:

   (1) Paul Happe (Scott County)
   (2) Eugene C. Markman (Stearns)
   (3) Sharon Cook (Anoka)
   (4) Joel Gregory Uldrych (Wright) 
         Listed as "Joel Gregory"
   (5) Claudia Bernstein (Hennepin-Edina)
         Listed as "Claudia Bernsten"
   (6) Michael J. Hall (Hennepin-Edina)
   (7) Sehwah Maggie Philips (Hennepin-Brooklyn Park)

Norm Coleman won Scott, Stearns, Anoka and Wright County by a minimum of nine percent; but the three voters listed from Hennepin County pose a slightly more difficult scenario. I scanned through the Coleman campaign's original election contest submission and the subsequent response by Franken hoping to find each voter identified within their precinct, but no such luck. Instead I consulted my precinct table and extracted the following data:

   Candidate   Brooklyn Park     Edina
   Coleman        13,282         15,172
   Franken        17,155         12,428
   Other           5,530          3,894

   Total          35,967         31,494

If we follow a straight extrapolation, Coleman seems likely to win six of the seven votes that could result from these seven interventioners.

The Coleman campaign released their reply to the Franken Motion we recently covered; the Election Contest Court has yet to issue an official order on the subject, but a lot of insight can be gleamed from the exact wording of Coleman's answer:

Contestants agree that Contestee should be granted leave to amend his counterclaims to include additional wrongly rejected absentee ballots so long as all similarly situated rejected absentee ballots--that is, those that reasonably fall within the same category--are subject to review by the Court to determine if they too are legally cast votes. Contestants have endeavored to include all similarly situated ballots within each and every category presented to the Court, in their summary judgment motion and at trial, and welcome all efforts to ensure that legally cast votes are counted.

As to the timing of any amendment, Contestants respectfully request that Contestee be required to identify any additional rejected absentee ballots before the Court makes any rulings regarding which, if any, of the rejected absentee ballots identified by Contestants should be counted.

Dated: February 6, 2009

Source: Contestants' Response to Motion to Amend Answer and Counterclaim via MNCourts.gov

The Coleman campaign has conditionally accepted Franken's request, contingent upon their inclusion of additional absentee ballots. This response by the Coleman campaign reveals the dreary prospect of an absentee ballot inspired comeback; they have internally realized that the origin of any given absentee ballot is irrelevant. The Coleman campaign has shifted their focus to quantity, in the hopes that each wrongfully rejected absentee ballot inherently tends toward Norm Coleman. An analysis of the rejected voter list [csv] posted on Norm Coleman's website seems to verify this premise. The ballots listed on Coleman's site belong to the C1 region of our absentee ballot universe diagram.

Using the aforementioned data, an extrapolation can be performed:

Download the complete table: PDF 113 KB

The extrapolation uses the final recount result, as certified by the Minnesota State Canvassing Board on January 5th, and assumes that any subsequent absentee ballot, in any county, will follow the trend established by the recount. All candidates were considered. A brief synopsis of our results is available below:

   Scenario                               Coleman Net
   (1) 100% of Coleman's List Accepted:      -84.18
   (2) Only Counties that Coleman Won:       269.98
   (3) 100% Accepted with 5% Coleman Bias:   138.72
   (4) Coleman Counties with 5% Bias:        368.73

   Listed from Franken Counties:              2,490
   Listed from Coleman Counties:              1,968
   Total:                                     4,458

The results listed above can be used to determine the complete set of potential absentee ballot results. To determine what would happen if just 20% of listed ballots were counted with a 10% uniform bias toward Coleman, above and beyond the recount result, the following calculations can be used:

      100% Accepted with 5% Coleman Bias = 138.72
    x                                         20%
   -----------------------------------------------
        20% Accepted with 5% Coleman Bias = 27.74
    x                                           2
   -----------------------------------------------
       20% Accepted with 10% Coleman Bias = 55.49

Now that you understand where the data came from and how it can be used, we can discuss what it actually means. Norm Coleman has essentially two options, they are not mutually exclusive, but they are strongly correlated:

A. Try and cherry pick absentee ballots that come from statistically favorable counties.

B. Hope that the set of currently rejected absentee ballots systematically favors Norm Coleman.

Scenario (1) represents a complete failure, on the part of the Coleman campaign, to implement either option (A) or (B); scenario (2) represents the successful implementation of option (A); scenario (3), option (B) and scenario (4) encompasses both options (A) and (B).

At this juncture, the Coleman campaign seems to be keeping their options open, but in including more ballots from Franken territory, they seem to be relying more heavily on option (B), despite the lacking quantitative evidence. The only empirical data pertaining to option (B) stems from the testimony of three county election directors; Joe Mansky representing Ramsey, Kevin Corbid from Washington and the Election Manager of Anoka County, Rachel Smith.

Rachel Smith's testimony covered the vast majority of the 107 ballots presented by the Coleman side; from my non-scientific observation of the trial proceedings, Ms. Smith stated that less than five of these ballots were improperly rejected. Mr. Mansky and Mr. Corbid covered a much smaller and unequally distributed set of the proposed ballots, thus making any reasonable estimate impossible. With the possible exception of Anoka, any projection of a wrongful rejection rate is a complete shot in the dark. Regardless of the odds, there are still ballots meriting inclusion and it's entirely possible for Norm Coleman to retake the lead, although not necessarily probable.

To expedite the investigative process, it would make sense for the Election Contest Court to categorize and count the remaining absentee ballots meriting reconsideration. If upon this categorization and subsequent counting, the Coleman campaign still has a mathematical opportunity to win, the court should proceed by analyzing the category's most favorable to Coleman first. If a crucial category is eliminated from contention, the litigation ends and the candidate currently in the lead is issued an official election certificate.

I have not studied the legality of this proposed resolution.

I realized that my previous article regarding the Minnesota Senate Election Contest Court's Tuesday rulings may have been vague, as well as incomplete. I want to take this opportunity to clarify those rulings with respect to previous and future events. To begin I'd like to restate the pertinent information from Tuesday's rulings:

The above-entitled matter came before the Court upon a Motion in Limine by Contestee Al Franken to Limit Absentee-Ballot Evidence to Ballots Pleaded in the Notice of Contest. The Court having read the arguments of counsel, and based upon the files, records, and proceedings herein, makes the following:

ORDER

1. Contestee A1 Franken's Motion in Limine to Limit Absentee-Ballot Evidence to Ballots Pleaded in the Notice of Contest is GRANTED IN PART and DENIED IN PART as follows:

a. The scope of this trial shall be limited to the following:

i. Absentee ballots where it is claimed that the voter complied with the requirements of Minnesota Statutes § 203B.12, subd, 2.

ii. Absentee ballots where it is claimed that the voter's non-compliance with Minnesota Statutes § 2038.12, subd. 2 was not due to fault on behalf of the voter.

b. Contestants estimate the total number of these ballots to be 4,797.

c. Contestants are limited to presenting evidence on only those ballots that were specifically disclosed to Contestee on or before January 23,2009.

2. Any other relief not specifically provided herein is DENIED.

3. The attached memorandum is incorporated herein by reference.

[From the attached Memorandum]

[I]n order for Contestee to be given a fair opportunity to meet the asserted claims, Contestants are limited. to the individual voters whose ballots they believed were wrongly rejected prior to the commencement of trial, Contestants, therefore, are limited to presenting evidence on only those ballots that were specifically disclosed to Contestee by name as of January 23, 2009.

Source: Order on Contestee's Motion in Limine to Limit Absentee-Ballot Evidence to Ballots Pleaded in the Notice of Contest via MNCourts.gov [PDF]

At this juncture, the Election Contest Court will only consider absentee ballots that are contained within the area specified by the above order in sections 1.a.i. and 1.a.ii; section 1.c also applies, but only to the Contestant, Norm Coleman. This order only applies to absentee ballots, it does not affect the double counting issue or any other anomaly. I've created an Euler Diagram below that illustrates the now restricted universe of absentee ballots, as the above order applies to Norm Coleman:

C1. This circle represents the initial list of some 12,000 absentee ballots that are currently rejected; the Coleman campaign presented a Motion for Summary Judgment requesting that these 12,000 ballots be opened, counted and certified. As of yesterday, their motion was denied:

The above-entitled matter came on for hearing before the Court on January 23, 2009, upon Contestants' "Motion for Summary Judgment. Counsel noted their appearances on the record. The Court having heard and read the arguments of counsel, and based upon the files, records, and proceedings herein, makes the following:

ORDER

1. Contestants' Motion for Summary Judgment is DENIED.

2. Any other relief not specifically ordered herein is DENIED.

3. The attached Memorandum is incorporated herein by reference.

Source: Order on Contestants' Motion for Summary Judgment via MNCourts.gov [PDF]

C2. Represents the 4,797 absentee ballots as estimated within section 1.b by the Coleman campaign. The ruling in 1.b does not apply to the Franken campaign in any way shape or form because the request was filed by Franken requesting restrictions upon Coleman. The Coleman campaign did not append any requests to Franken's motion, as they are allowed to do, requesting restrictions on Franken. If there was no request for restrictions, restrictions cannot be created.

C3. This circle explicitly outlines section 1.c, although the exact number of presentable ballots remains unclear. The best guess I can provide stems from the original election contest filing; on page 36 the document reads, "the Coleman campaign contends that there are 654 [rejected absentee] ballots, in addition to those identified by local election officials, that should be examined." The Coleman campaign disclosed at least 654 specific, rejected absentee ballots before the January 23rd deadline.

C4. This circle deals with the future tense and represents the ballots which will be explicitly presented as evidence to the court by Norm Coleman. Franken will be allowed to file rebuttal evidence on any ballot Coleman presents to the court within this subset.

C5. This final circle represents the final number of currently rejected absentee ballots that will eventually be counted that were originally presented by Coleman.

The Election Contest Court uses the adversarial legal system; each side presents their side of the issue and in doing so both sides are represented. This, in theory, ensures that each ballot, presented by either side, receives fair consideration. Coleman's side is very well established, while Franken's is less understood.

To begin defining Franken's outer circle, I will make an assumption; Franken wants to maximize the ratio between potentially rejected absentee ballots and potential Franken votes. In other words, Franken wouldn't submit a rejected absentee ballot if it is more likely to contain a vote for Coleman; the burden is on Coleman to ensure that each ballot cast for Coleman is considered in accordance with the ECC.

The document below was presented by Franken on January 12th in response to Coleman's election contest filing; pay close attention to the specifically referenced absentee ballots that were rejected:

INTRODUCTION

Contestee, Al Franken ("Franken"), certified as having been chosen as United States Senator by the people of Minnesota in the November 4, 2008, election ("Election"), files this Answer to the Notice of Contest ("Notice") filed by Contestees Norm Coleman and Cullen Sheehan (collectively, "Coleman").

...

FIRST COUNTERCLAIM [Page 21 of 565]

LAWFULLY CAST ABSENTEE BALLOTS REJECTED BY COLEMAN

3. Although Franken agreed with local election officials that many of the absentee ballots on the list of 1,346 ballots were obviously erroneously rejected, Coleman's campaign objected to the opening and counting of many such ballots. In Duluth, in S1. Louis County, Coleman refused to allow 35 absentee ballots, identified below, to be counted solely because the dates of the signatures of the voter and witness were not the same:

[Table of 35 absentee voters from 11 Duluth precincts in St. Louis County]

...

SECOND COUNTERCLAIM [Page 23 of 565]

ERRONEOUSLY REJECTED ABSENTEE BALLOTS

5. Franken has identified a large number of absentee ballots that were rejected in error by election judges and local election officials, and which were not included on the list of 1,346 wrongfully rejected absentee ballots created by local election officials, and were not counted as part of the recount. In Exhibit D, for each voter identified below, Franken attaches declarations from each voter and/or other supporting documentation demonstrating that local election officials rejected each ballot in error.

[Table of 86 absentee voters from 79 precincts, across 20 counties]

THIRD COUNTERCLAIM [Page 26 of 565]

MISSING BALLOTS

6. In a number of precincts not selected by Coleman, ballots went missing between Election Day and the recount. Under Minnesota case law, a ballot serves as the best evidence of a vote. But when ballots are missing, or their integrity is otherwise compromised, election officials must turn to the next best evidence: here, the vote totals provided by election officials on Election Day. Where, as here, actual ballots cast on Election Day cannot be found, local election officials must submit-and the State Canvassing Board must accept-the Election Day return as reflecting the proper tally of votes for purposes of the canvass, the recount, and the Board's certification of the results under Minn. Stat. § 204C.33.

...

8. Similarly, ballots went missing during the course of the recount from the following precincts and were not adjusted for, resulting in a net loss of votes for Franken:

[A total of 16 precincts were listed, across 9 counties totaling 55 votes; the individual ballots are not explicitly listed]

...

FOURTH COUNTERCLAIM [Page 27 of 565]

COUNTING OF ORIGINAL AND DUPLICATE BALLOTS

9. If and when Coleman is allowed to and does identify the "numerous precincts throughout the State of Minnesota," and proves that irregularities did, in fact occur during the recount, Franken reserves the right to identify additional precincts in which the numbers of original ballots and duplicate ballots were not identical and propose procedures whereby all identified precincts are treated uniformly with respect to inspection and relief, if any, ordered by the Court.

10. Coleman gained votes in the recount in certain precincts where the increase is as likely due to counting of original and duplicate ballots as in the precincts identified by Coleman. Those precincts are:

[A total of 12 precincts were listed, across 6 counties totaling 34 votes; the individual ballots are not explicitly listed]

FIFTH COUNTERCLAIM [Page 28 of 565]

ILLEGAL VOTES

11. Under Minn. Stat. § 201.014, subd. 2, individuals convicted of felonies whose civil rights have not been restored are ineligible to vote. Under Minn. Stat. § 204C .13, if election judges determine that a voter is not eligible to vote, they must place the ballot of that voter unopened among the spoiled ballots.

...

EXHIBIT E [Page 545 of 565]

Lawfully Cast Absentee Ballots That Were Not Counted

[A list of 673 voter's names is detailed along with the precinct and county in which they voted]

Source: Contestee's Answer and Counterclaims via MNCourts.gov [PDF, 17.3 MB]

The above document lists 794 specific voters who cast absentee ballots that were rejected, and still remain uncounted. I think it is fair to assume that Franken's outer circle roughly encompasses these 794 specific voters, as listed directly above, who cast absentee ballots. From this list we can construct an Euler Diagram of Franken's absentee ballot universe:

F1. This circle represents at least the aforementioned 794 specific absentee ballots, but this number may, and probably will change, as evidenced in this motion filed by Franken on February 4th:

MOTION

Contestee Al Franken moves for leave to amend his Answer and Counterclaims in light of the Court's Order dated February 3, 2009, allowing Contestants to pursue claims involving approximately 4,800 absentee ballots. Specifically, Contestee intends to amend his counterclaims to reflect his continuing review and analysis of the approximately 11,000 rejected absentee ballots. Among other things, Contestee will further refine Exhibit E to the Second Counterclaim, eliminating some ballots and adding others.

Source: Contestee's Motion to Amend Answer and Counterclaims via MNCourts.gov [PDF]

The Franken filing does not however reference any specific changes and for this reason it is likely to fail. The Coleman campaign has yet to file a response.

F2. The Election Contest Court has yet to determine the number of ballots from Franken's list, estimated at 794, that qualify for consideration under 1.a.i and 1.aii. It is possible that F2 is a subset of C2, but the information expressed in 1.b is somewhat unclear. Are there 4,797 total absentee ballots meeting the requirements expressed in 1.a.i and 1.aii, or are there 4,797 absentee ballots that Coleman has cherry picked that meet the restrictions? If the first statement is true then F2 is a subset of C2, otherwise it is not and the total universe of considerable rejected absentee is whatever Franken's list is determined to be plus the 4,797 in which Coleman is already restricted.

F3. This region represents the number of ballots that are eligible for future consideration and may be presented as evidence. Coleman will be allowed to file rebuttal evidence on any ballot Franken presents to the court within this subset.

F4. These are the ballots that will eventually be presented to the Election Contest Court as evidence. Like C4, this region is not explicitly defined, although the aforementioned 794 will likely be eligible.

F5. This final circle represents the final number of currently rejected absentee ballots that will eventually be counted that were originally presented by Franken.

If we put everything together, the set of all ballots, that will eventually be counted as a result of the Election Contest Litigation is shown below:

It remains to be seen how these various sets of ballots will be counted but the review will not be done on a ballot by ballot basis. The court will likely request an election inspector to examine all ballots in a certain subset if the Coleman campaign is able to prove that there were inconsistencies when applying election statutes or if there were generic equal protection violations. In any case, the Election Contest continues and the burden still lies upon the Coleman campaign.

Full Disclosure: The empirical information is authoritatively correct, but my interpretation of the legal proceedings may not be accurate. If you notice any legal fallacies, please alert me of my error; I am not a legal expert, but I have thoroughly researched the preceding article.

I probably won't be able to watch any of today's proceedings live, but I will have a summary later on this evening.

2:29 PM CT: Joe Friedberg is questioning the Washington County Elections Director, Kevin Corbid.

2:33 PM CT: Mr. Friedberg then discussed a ballot completed by an absentee voter. The election officials agreed with the original determination; it was properly rejected because the signatures did not match. This was from Exhibit C4.

2:34 PM CT: Onto Exhibit 5 and 6. Mr. Friedberg stated that there were stickers placed on the ballot but they did not overlap the signature signing area. Mr. Corbid agreed and stated that the ballot was properly rejected.

2:35 PM CT: Mr. Lillehaug then objected and addressed the judges. He referenced Exhibit C325; he asked under Minnesota Statue § 203.b12 sub 2, that any ballot where a sticker is not concealing directions should require a signature. The objected was noted, but overruled.

2:37 PM CT: Mr. Friedberg then offered Exhibit C7 and C8. Mr. Corbid stated that the original issue was a signature mismatch, and upon further inspection, was properly rejected. Mr. Friedberg then asked Mr. Corbid to analyze the similarity of the application signature and the envelopes signature, specifically the 'N's. Mr. Corbid stated that the 'N's were similar, but the rest of the signature was not close enough.

2:40 PM CT: Mr. Friedberg then moved onto Exhibits C9 and C10; the panel then asked whether Mr. Friedberg was going to continue offering signature mismatched ballots. The judge stated that the panel could do this on their own. Mr. Friedberg stated that he had specifics he wanted to cover.

Summary [1:29 AM CT]:I will eventually update this page with a summary of today's events. In the meantime, two major decisions were published by the court. The first order is fairly self explanatory:

Contestants Cullen Sheehan and Norm Coleman ("Contestants") and Contestee Al Franken ("Contestee"), through their attorneys, hereby stipulate and agree as follows:

...

2. The 933 Ballots were properly and lawfully opened and counted, and the results of the 933 Ballots were properly and lawfully included in the results of the 2008 United States Senate election as certified by the Minnesota State Canvassing Board. Accordingly, Contestants dismiss with prejudice all claims in the Notice of Contest relating to the 933 Ballots, and Contestee consents to the dismissal. Costs, if any, shall be determined later. To further Minnesota's policy of ballot secrecy, the Minnesota Secretary of State shall take all necessary steps to remove and/or redact permanently the numbers affixed to the ballot envelopes and ballots on January 3, 2009. The totals from the opening, sorting and counting of these ballots shall be included in the results of the 2008 United States Senate election.

Dated: February 3, 2009

Source: Stiputlation and Order Re: Absentee Ballots via MNCourts.gov [PDF]

The quoted text above is literally the entire order, although a memorandum with some other background information was appended to the end of the document. This ruling basically means that the absentee ballots that were counted under the pretense of wrongful rejection were validly counted and cannot be uncounted by any means. The court also ruled that any identifying marks, contained on any of these 933 ballots, resulting from the absentee ballot sorting process, should be permanently removed.

The court also presented their ruling with "prejudice;" this verbiage establishes a pseudo-precedent, although not a legal definition, for any re-review of the ruling, by the same court. This classification does not however have any effect on the application of this order. It should also be noted that this determination was a stipulation agreed to by both campaigns; the probability of this issue resurfacing in front of the Election Contest Court is unlikely.

The second order was slightly lengthier, and even more important:

The above-entitled matter came before the Court upon a Motion in Limine by Contestee Al Franken to Limit Absentee-Ballot Evidence to Ballots Pleaded in the Notice of Contest. The Court having read the arguments of counsel, and based upon the files, records, and proceedings herein, makes the following:

ORDER

1. Contestee Al Franken's Motion in Limine to Limit Absentee-Ballot Evidence to Ballots Pleaded in the Notice of Contest is GRANTED IN PART and DENIED IN PART as follows:

a. The scope of this trial shall be limited to the following:

i. Absentee ballots where it is claimed that the voter complied with the requirements of Minnesota Statutes § 203B.12, subd, 2.

ii. Absentee ballots where it is claimed that the voter's non-compliance with Minnesota Statutes § 2038.12, subd. 2 was not due to fault on behalf of the voter.

b. Contestants estimate the total number of these ballots to be 4,797.

c. Contestants are limited to presenting evidence on only those ballots that were specifically disclosed to Contestee on or before January 23,2009.

2. Any other relief not specifically provided herein is DENIED.

3. The attached memorandum is incorporated herein by reference.

Source: Order on Contestee's Motion in Limine to Limit Absentee-Ballot Evidence to Ballots Pleaded in the Notice of Contest via MNCourts.gov [PDF]

At this point, the Coleman campaign will likely subpoena each and everyone of these 4,797 rejected absentee ballots, from their respective counties. If the Coleman campaign's subpoenas are successful, the number of ballots actually presentable as evidence, under section 1C, remains unknown. If for a moment we assume that all 4,797 ballots are admitted as evidence, they simply become eligible for consideration; they are not automatically placed in the to be counted pile. Although this order places significant restrictions upon the Coleman campaign, the Franken campaign is completely unaffected by today's determination. The wording of the order appears to imply an overarching decision, but it only affects the potential inclusion of absentee ballots; the doubling counting issue and others, raised by the Coleman campaign, are still very much alive.

On a somewhat related subject; why are people incapable of referencing the actual court documents? If you are going to write an article referencing a decision or order put forth by the Election Contest Court, link to the source. This process is about disseminating information and ensuring that all lawfully cast ballots are accurately counted; not perpetuating spin and misinformation. The only people who have an opinion in this matter are the three judges presiding behind the bench, this is not an election, this is a judicial process. The people of Minnesota have already spoken, it is now the duty of the State to ensure that their will is upheld.

The intraday log is below, followed by a comprehensive summary and a few extra tidbits.

9:08 AM CT: The judges have yet to enter the courtroom.

9:19 AM CT: The start time has been pushed back to 9:30 AM CT.

9:39 AM CT: The proceedings are still delayed, I don't expect this to start anytime soon.

9:55 AM CT: Still waiting...

11:27 AM CT: Mr. Mansky is being questioned by Mr. Hamilton. Mr. Hamilton is presenting absentee ballots which were rejected. The last several ballots were rejected, but Mr. Mansky stated that they should have been counted. The ballots in question were presented by the Ramsey County during the re-review but the Coleman campaign rejected their submissions.

11:32 AM CT: Mr. Hamilton then discussed a specific absentee ballot request form. The two of them discussed the reasons for which an absentee ballot could be requested; it is a felony to request an absentee when you do not meet the request guidelines. Minnesota does not have no questions asked absentee balloting like "Oregon, where everybody votes by absentee."

11:35 AM CT: Mr. Hamilton continued to reference ballots which were put forth by the election officials for inclusion, but were rejected by Coleman. Mr. Mansky stated that these ballots should be been counted. There were numerous reasons for which ballots were originally rejected, all of which were incorrect and later acknowledge by election officials.

11:38 AM CT: Another ballot was present with a note; Mr Mansky stated the note was on the original absentee ballot/envelope/return form. Yet another ballot was presented that was identified by Ramsey County, but rejected by the Coleman campaign. An objection was then put for by Mr. Rock, but was overruled; the court did say it would note the request for admissibility.

11:41 AM CT: At this point Mr. Hamilton just told Mr. Mansky to go through the rest of the current list; Mr. Hamilton asserted that the remainder were identified by Ramsey County officials, but rejected by the Coleman campaign. This list apparently goes from Exhibits F1668 to F1675. Mr. Mansky confirmed that each of this ballots was identified by Ramsey County and that every one was objected by the Coleman campaign. There were 9 ballots contained within the preceding exhibits.

11:43 AM CT: Mr. Hamilton then referenced Exhibit F117, a letter written by the Frederickson law firm representing the Coleman campaign. Mr. Mansky recieved this document as part of his daily job. The document contained 15 ballots which Mr. Lillehaug believed should have been counted. Mr. Hamilton then submitted Exhibit F133 which contained an email by Mr. Mansky stating that two of these ballots were improperly rejected. Within the document he stated that they did not meet the 3 PM deadline for inclusion into the pool of potentially wrongfully rejected absentee ballots.

11:47 AM CT: Mr. Hamilton asserted that the letter by Lillehaug was written on December 26th, well in advance of the time these wrongfully rejected absentee ballots were counted. Mr. Mansky and Mr. Hamilton then went through each of the 15 ballots included in Mr. Lillehaug's email. A spreadsheet, labeled as Exhibit F44, contained these 15 ballots issued by the SOS office. Mr. Mansky asserted that the first ballot was improperly rejected.

11:50 AM CT: Next exhibit, F36. Onto the second ballot of this set of 15. Mr. Mansky asserted based upon the ballot envelope that this voter did not submit a voter registration. Mr. Mansky then stated that the voter was registered, and that their vote should should have been counted.

Summary [6:16 PM CT]: After a bit of a late start, the sixth day of the election contest got underway; Mr. Mansky returned to the stand and Mr. Hamilton resumed his line of questioning. Mr. Mansky is the Chief Election Officer of Ramsey County and he takes his duty personally. Mr. Mansky then discussed the role that volunteer election judges play in the election process; they are normally tired a fatigued after their fifteen hour day. Sometimes these election officials make mistakes, at the precinct level. Mr. Mansky then stated that math errors do and did occur.

Mr. Hamilton then presented a document from St. Paul Ward 3 Precinct 9. Mr. Mansky asserted that the numbers did not add up. He stated that it was possible for voters to sign in and not vote, to vote and not sign in, or perhaps leave at any point in the process, thus creating arithmetic errors. Mr. Hamilton then presented an incident log that election officials are supposed to fill out if anything peculiar happens throughout election day. The log recorded a voter he walked out of the precinct with a ballot after refusing to get a new one after overvoting.

Mr. Hamilton commented that "these errors, in reality do not mean that there were more votes than people," Mr. Mansky agreed. Mr. Mansky then stated that it would not be difficult to find errors within the paper filed by election officials, but "this do not necessarily mean that there was fraud, or malfesence or double counting." It is Mr. Mansky's goal is to ensure that elections go smoothly and that all valid votes are counted.

Mr. Hamilton then recalled Mr. Rock's hypothetical 110 votes, 100 signatures scenario presented yesterday. Mr. Mansky and Mr. Hamilton then stated that the header cards used to signal the conclusion of counting. Mr. Mansky then "definitively" stated that the incidents that occurred in Maplewood P6 were not the result of double counting, but rather the poor implementation of a header card. Mr. Hamilton then presented a spin off of Mr. Rock's previous hypothetical in which voters were actually disenfranchised. Mr. Mansky stated that this new scenario was plausible. Mr. Hamilton then spoke about twelve ballot found in a zip lock bag in a Minneapolis precinct that were not counted on election due to their missing duplicate.

In Mr. Mansky's experience, election officials take their job very seriously; but the process is also intended to be inherently fair. Mr. Hamilton then submitted Exhibit F1677 to the court and Mr. Mansky. The document lists the processes, as outlined by the election official guide, by which ballots are to be duplicated. There are nine steps total, its a very logical and fair process, no surprises. In order for a duplicate ballot, without a matching original, to be fed through the machine, both election officials required for duplication would have had to knowingly ignore the laws for ballot duplication. Mr. Hamilton then referenced Exhibit F9; it was a copy of the court filing against Ramsey County to disclose duplicate ballot issues with respect to data privacy issues.

The court eventually ruled that the absentee ballot envelopes in question were ruled to be public data and were required to be produced.; the Coleman campaign opposed this decision. You cannot look at simply the face of the ballot envelope to determine whether the ballot was actually counted. The absentee ballots are counted in their respective precinct; the transportation of these ballots is required to count out the number of ballots in front of the head election judge; both coming and going. In the "mid to later afternoon" the election judges feed the absentee ballot through the scanner; this can be done at any point in the day however. Each precinct is required by law to record the number of absentee ballots, for this reason a header/ender card is used to notify the scanner of the type of ballot. Once an ender card is submitted, the scanner prints the official election tape. If the header card is not inserted at the correct time, absentee ballots will still be counted, but they will be recorded as in person votes; the same can happen in reverse.

At 8 PM, the election judges will determine if there are any voters and determine the last person who will be allowed to vote. If the machine is busy, or inoperable ballots will be placed in an emergency ballot receptacle within the scanner. Once all ballots are counted, the result is printed and uploaded to the central database. At this point, the ballots are sealed and shipped to a secure holding place, usually the city hall. The scanner and memory cards are also returned to a secure location at the end of the day, by the election judge. Mr. Mansky stated that this was a safe and secure election, there were no security related issues, "none."

Mr. Mansky was then presented with two spreadsheets created by Ramsey County officials; a detailed list of wrongfully rejected absentee ballots was provided in accord with the MN Supreme Court ruling. The exhibit was listed as F1698. Mr. Mansky stated that he hand picked two of the most experienced election officials to aide in the creation of these spreadsheets. Mr. Mansky then discussed the process by which rejected absentee ballots were reexamined for potentially erroneous exclusion. The process took two weeks, just for Ramsey County; this was the second time these ballots had been viewed. Mr. Mansky stated that he wanted to count each and every last valid vote. Mr. Mansky stated that his two aides should take as much time as possible; he wanted the process to be thorough and accurate.

Now going back to the previous list which contains 133 absentee ballots that Mr. Mansky and his staff determined to have been improperly rejected. Mr. Hamilton then referenced Exhibit F114. Mr. Mansky stated that he could identify this document which was sent out by the SOS office on December 24th to all officials taking part in the resorting of rejected absentee ballots. The document detailed the procedure that local election officials were supposed to follow in the Fifth Article [1]. Officials were not supposed to rely solely upon the face of the envelope, but were expected to explore other data in making their determination. Of the 133 ballots presented by Ramsey County, 62 of them were rejected by wither campaign and just 71 were counted.

At this point, Mr. Hamilton wants to analyze some of the 61 ballots which were rejected. Mr. Hamilton presented Exhibit F1655; this was a ballot identified as having been wrongfully rejected. Mr Mansky agreed with Mr. Hamilton's assessment of Exhibit F1655; it was originally rejected because the voter was not registered and there was not registration form. The last page of the exhibit confirmed that the voter was in fact registered. Mr. Mansky stated that the ballot was rejected by the Coleman campaign based upon the registration issue. Mr. Hamilton then presented F1656, another ballot that was identified by Ramsey County, but was rejected by the Coleman campaign; citing insufficient voter identification, the original ruling. The Exhibits have been redacted of any identifying information. Exhibit F1565 was never counted. Mr. Hamilton put forth another ballot F1657. This ballot was from Mounds View and was identified as being wrongfully rejected; the proper ballot was not mailed. As a result the ballot was not counted, as it was rejected by the Coleman campaign.

Exhibit F1658 was then presented by Mr. Hamilton; the voter was cited as having not been registered. Mr. Mansky stated that the voter was registered, that their vote was never counted because it was rejected by the Coleman campaign. Onto the next ballot, Exhibit F1659; the voter was not found within the voter roster. Mr. Mansky asserted that this was an error and that it should have been counted despite the Coleman rejection.

Mr. Hamilton then discussed a specific absentee ballot request form. The two of them discussed the reasons for which an absentee ballot could be requested [2]; it is a felony to request an absentee when you do not meet the requesting guidelines. Minnesota does not have a no questions asked absentee balloting system like "Oregon, where everybody votes by absentee."

Mr. Hamilton then directed the court's attention to F1660; another rejected ballot from Ramsey County. The ballot was originally rejected because the local election officials could not find the voter in the registration database; Mr. Mansky stated that it was a mistake and that it should have been counted. Mr. Hamilton then asserted that Coleman rejected the ballot within F1660. Onto F1661, again from Ramsey County. This ballot was originally rejected because the voter only had a passport; Mr. Mansky then asserted that this was not a valid reason to reject a ballot. It should have been counted, but was not because the Coleman campaign rejected. Exhibit F1662 was then presented and received; the original reason for rejection was lack of registration. Mr. Hamilton then stated that the voter was registered and that their vote would and should have been counted had the Coleman campaign not rejected it. Mr. Mansky agreed with this assessment.

Next, Exhibit 1663; from Ramsey County, again. The ballot was rejected because the voter was not registered. The county corrected this error, but the Coleman campaign later rejected it. F1664 was then received by the court; the judge asked about a note written on the ballot. Mr Mansky stated the note was on the original absentee ballot/envelope/return form. This ballot was originally rejected because the voter was not a resident of Minnesota; upon further inspection, the county officials determined that their first ruling was inaccurate. The Coleman campaign then rejected it before it could be counted. Yet another ballot was presented that was identified by Ramsey County, F1665, but was rejected by the Coleman campaign. An objection was then put for by Mr. Rock, but was overruled; the court did say it would note Mr. Rock's stipulation for admissibility. Mr. Mansky stated that this vote should have been counted.

At this point Mr. Hamilton then spared us all by just asking Mr. Mansky to go through the rest of the list; Mr. Hamilton asserted that the remainder were identified by Ramsey County officials, but rejected by the Coleman campaign. The Exhibits in question ranged from F1668 to F1675. Mr. Mansky confirmed that each of this ballots was identified by Ramsey County as improperly rejected and that each and every one them was objected to by the Coleman campaign. There were 9 ballots contained within the preceding exhibits. None of these nine were counted.

Mr. Hamilton then referenced Exhibit F117, a letter written by the Frederickson Law Firm the attorneys representing the Coleman campaign. Mr. Mansky received this document as part of his daily job. The document contained a copy of Mr. Lillehaug's letter of December 26th 2008 containing materials relating 15 rejected absentee ballots in Ramsey County which he believed should have been counted. Mr. Hamilton then submitted Exhibit F133 which contained Mr. Mansky's email response to Mr. Lillehaug's letter. Mr Mansky stated that two of these 15 ballots were improperly rejected; he then read off the list of voters included within the list of 15. Within the document he stated that they did not meet the 3 PM deadline for inclusion into the pool of potentially wrongfully rejected absentee ballots.

Mr. Hamilton asserted that the letter by Lillehaug was written on December 26th, well in advance of the time these wrongfully rejected absentee ballots were counted, January 3rd. Mr. Mansky and Mr. Hamilton then went through each of the 15 ballots included in Mr. Lillehaug's email. A spreadsheet, labeled as Exhibit F44, contained these 15 ballots as issued by the SOS office. Mr. Mansky asserted that the first ballot was improperly rejected due to lack of voter registration submission. Mr. Mansky then agreed that this ballot was improperly rejected. Next exhibit, F36. Onto the second ballot of this set of 15. Mr. Mansky asserted based upon the ballot envelope that this person did not submit a voter registration. Mr. Mansky then stated that the voter was registered, and that their vote should should have been counted.

Mr. Hamilton then presented F1697; the exhibit contains five documents pertaining to a single voter. The ballot was rejected because the voter was not registered at the specified address. Mr. Mansky believes that this ballot should have been counted. Mr. Hamilton presented another ballot and its accompanying data in Exhibit F1700; the ballot was originally rejected due to a lack of voter registration cards. Mr. Mansky asserted that this was an error and that this ballot should have been counted. Up next, Exhibit F1695, another rejected absentee ballot that was not counted, but Mr. Mansky's believed that it was improperly rejected and should have been counted.

More exhibits, F1696; it contained the same five documents as the previous few exhibits. This ballot was originally rejected because there was not registration card, it was just a mistake; Mr. Mansky believed that it should have been counted. Up next, F102 which follows the same trends; it was rejected because of a proof of residence issue. The ballot should have been counted, but was not; Mr. Mansky agreed. Then Exhibit F62; Mr. Hamilton wanted to draw specific attention to the absentee ballot envelope. Mr. Hamilton asserted that it was rejected for an incomplete identification; this ballot was rejected, but should have been counted. Mr. Hamilton then presented Exhibit F63. The voter in F63 was the husband of the previous exhibit, their ballots were both rejected for the same reason and should both have been counted.

Onto F56, the ballot was rejected for a signature problem. Mr. Mansky asserted that this was an error and should have been counted. Exhibit F113 was then presented; it was rejected due to a signature mismatch. The voter had glaucoma and had her son sign in her place, Mr. Mansky ruled that this ballot should have counted because this process was legal because she had a disability. Another exhibit, F55 but this ballot was rejected due to a lack of a drivers license. Mr. Mansky stated that the drivers license ID was not required and as such, with some reservation, Mr. Mansky decided that the ballot should be counted based upon the information within the exhibit. Mr. Mansky the stated that he was aware of the voter through a voter on youtube; Mr. Hamilton stated that he did not want to go down that path. The final exhibit of the morning session was F104; this ballot was originally rejected based upon a signature issue. The voter was legally blind, and had his wife sign his ballot; which was completely legal based upon her power of attorney. Based upon these assertions, his ballot should have been counted, but it was not. A recess was ordered until 1:30 PM CT.

[Upon resumption, Mr. Mansky's testimony continued for two additional hours; I will eventually summarize this portion, but at this moment, I simply do not have the time.]

Upon the conclusion of Mr. Mansky's testimony, the Coleman campaign, specifically James Langdon, called Elissa Ryan Jackson to the witness stand. Mr. Langdon began the examination by presenting Exhibit C295 which contained Ms Jackson's absentee ballot documentation. Mr. Langdon then preceded to show Ms. Jackson her own absentee envelope. She stated that her husband was the witness. Ms. Jackson stated that she requested an absentee ballot because her husband was traveling and she had a five month old baby at home. She had not voted absentee before, and she did receive her absentee ballot through the mail. Mr. Langdon observed that there was no signature by Ms. Jackson on the signature line, he then asked her why she did not sign her ballot. "I thought I had everything correct," until she received a call from the Republican Party notifying her that her ballot was not counted. She received no other notification from any other party, group or government body. Mr. Langdon asked her what she would have done had she been notified of her error. Ms. Jackson stated that she would have done "whatever needed to be done, that's why I'm here; hoping that my vote will be counted."

Mr. Hamilton then conducted the cross examination; his first question asked Ms. Jackson to explain the circumstances surrounding the phone call she received from the Republican Party. She estimated that she received the phone call about three weeks ago from the Coleman campaign. She stated that they asked her who she voted for, and then they asked here to fill out an affidavit, which they prepared. They did not send offer to send here an affidavit until she told them how she voted. Ms. Jackson did not sign the absentee ballot envelope, and Mr. Hamilton wanted to review the exhibit for a moment. Ms. Jackson stated that a sticker was overlapping some of the instructions, but she went on to say that she "truthfully I don't know how I missed the signature." Mr. Hamilton then asked her a series of rhetorical questions to establish the foundation of his arguement; she stated that the signature directions and a required check box were not overlapped by the sticker.

Mr. Langdon then asked Ms. Jackson if she was a registered voter and if she meet all the other requirements to be an eligible voter; replied "yes" to both questions. She was then excused from the witness stand.

The Coleman campaign then called Joel Thomas Koehnen. Mr. Langdon then presented Mr. Koehnen with an exhibit containing his ballot. Mr. Koehnen stated that he went to the Inver Grove Court House to cast his ballot because he was going out of town. Mr. Koehnen gave the election officials his drivers licensee and they gave him a ballot; he then took the ballot into a voting booth, filled it out and returned it. An election official at the Court House witnessed Mr. Koehnen's ballot. Mr. Koehnen stated that he was never informed of any wrongdoing while at the Court House; had he been informed of his error, he "woulda done it over." Mr. Koehnen stated that nobody ever told him he had to fill out an application; he was simply given the ballot. Mr. Koehnen was informed that his vote was note counted in a letter mailed to him by the State of Minnesota. Upon reading the letter Mr. Koehnen called the state of Minnesota and then "Joe Friedberg's law office" because he had a "friend that follows him."

Mr. Hamilton began the cross examination; he began by inquisitively asking "you called Joe Friedberg's office?" The witness responded by saying "yeah, whats wrong with that?" Mr. Hamilton responded with a chuckle, "there is nothing wrong with that, in fact there's everything right with that. He is an excellent lawyer and I'm just wondering how that happened." Mr. Koehnen stated that he got a letter "that the Franken campaign canceled my vote, alright I didn't vote for Al Franken." When Mr. Koehnen called the State, he told them that he was going to call Friedberg's office because he represented Norm Coleman; the state responded by saying that "it was an excellent idea." Mr. Koehnen then called Friedberg's office. Mr. Hamilton asked Mr. Koehnen whether he requested an absentee ballot, Mr Koehnen responded by saying that he "just walked into the court house, and gave them my license and they gave me a ballot and I voted." Mr. Hamilton then asserted that there was no form involved and no signature, Mr . Koehnen agreed.

The court then recessed until 9 AM CT tomorrow morning.

I'd also like to point out that Coleman's US Senate website is still fully functional.

Below is a recap of this past week's election contest proceedings; each day's events are detailed in 650 words or less:

Monday, January 26th
Complete Summary: Day 1

The first day of the trial began at 11 AM CT, and each side presented their very dry opening remarks. The proceedings progressed and the Coleman campaign called Kristen Fuzer, a "Political Director," to the stand. The witness spoke about two issues; the Coleman campaign's internal position regarding rejected absentee ballots and the process by which ballots were copied within the Coleman campaign. The witness repeatedly stated that she was "not a lawyer" and was not in attendance for legal meetings. One of the judges stated that her purpose, as a witness, was to "lay a foundation for the admissibility of the [ballot] copying issue." Ms. Fuzer stated, toward the end of her testimony, that it was possible for errors to have been made based upon the quantity of ballots that were reproduced.

Gloria Sonnet, a lawyer at the Minnesota firm Dorsey & Witney was then called to the stand. Gloria was apparently responsible for the compilation of a ballot table used by the Coleman campaign, and later presented as evidence in Exhibits C1 and C2. The Exhibits contained some 5,000 absentee ballots which were classified, by the Coleman campaign, as wrongfully rejected. The witness and a Coleman attorney began sorting through each ballot and verifying its classification; was it rejected because of a signature mismatch, was it marked as accepted but never counted, etc. The Franken campaign eventually objected to this process based upon the inherent errors within the Exhibits and the lack of prior documentation. The court eventually recessed, and ruled that the Coleman campaign would have to use the original ballots and that these original ballots would have to be subpoenaed from each of Minnesota's 87 counties.

Tuesday, January 27th
Complete Summary: Day 2

The second day of the trail was supposed to begin at 9 AM CT, but was delayed due to a private meeting regarding the logistics associated with the ballots presented in Exhibits C1 and C2 during yesterday's proceedings. The Coleman side, courtesy of Mr. Friedberg started by asking that Ms. Sonnen's prior testimony be stricken from the record; the Franken campaign objected, but only because they wanted to question the witness. The events proceeded, because Ms. Sonnen was not present, with the Coleman campaign eventually presenting six witnesses whose absentee ballots had been rejected. Each of these voters was notified by the Republican Party that their vote was not counted. The common theme amongst all six of these Coleman witnesses centered around the voter's claim of wrongful rejection, not necessarily the legality of each election judges rejection.

Jim Gelbmann, the Deputy Secretary of State, was designated by the Secretary of State's office after a subpoena request, and was then called to the stand by the Coleman campaign. While on the stand, Mr. Gelbmann initially discussed the circumstances under which wrongfully rejected absentee ballots were counted. The Coleman campaign was attempting to show that these ballots were not treated equally by each of Minnesota's 87 counties; if this discontinuity could be proven, it would illustrate a breach in the adherence of the equal protection clause within the US Constitution. Mr. Gelbmann was unable to provide any substantial evidence supporting the Coleman campaign's theory; instead Mr. Gelbmann stated that any specific inconsistencies would have to be addressed by the election worker who dealt with a specific ballot. Mr. Gelbmann then spent the last thirty minutes addressing specific situations for accepting and rejecting absentee ballots in various counties, and the various processes used by these counties. The day reached an end, but before the court adjourned the Franken campaign voiced a complaint regarding anomalies within new evidence submitted by the Coleman campaign; both campaigns agreed to review the documents for errors and defects.

Wednesday, January 28th
Complete Summary: Day 3

At 9 AM CT, Jim Gelbmann resumed his position on the witness stand, a position he would occupy for the remainder of the day. In the morning session Mr. Gelbmann's testimony encompassed a variety of subjects relating to rejected absentee ballots. Mr. Gelbmann stated that election officials created a 3a pile in which they examined the secrecy envelope to determine if there was a registration card within the absentee ballot envelope; this determination was done by any means necessary without physically opening the envelope. If there was a registration within the envelope, that vote may have been validly cast, despite the lack of prior registration. Mr. Gelbmann discussed the scenario by which originally rejected absentee ballots were reclaimed as valid votes while Mr. Friedberg presented specific examples.

During the cross examination, Mr. Gelbmann was on the record stating that ballots were not intentionally counted twice. Mr. Lillehaug then referenced several documents which facilitated further discussion on the topic. Mr. Gelbmann established that there was a disagreement between the campaigns on the subject of ballot ownership; the Coleman campaign believed that the secrecy envelopes were private data, while the Franken campaign believed they should be made public. Mr. Gelbmann went on to say that the Secretary of State's office eventually sided with the Franken position. The morning session concluded with Mr. Gelbmann stating that "the decision of the local election officials should be assumed to be correct."

After the lunch intermission, Mr. Lillehaug resumed the tedious process of reviewing email correspondence between the various parties involved in the recount. The documents pertained to ballot duplication; as such Mr. Gelbmann discussed the circumstances required for a ballot to be duplicated. Mr. Lillehaug then referenced a letter written by Mr. Gelbmann regarding missing duplicates in eleven Brooklyn Park precincts. Through Mr. Lillehaug questioning, Mr Gelbmann asserted that it was proper, under Minnesota statue, to count the original ballots in the case of any discrepancies. Mr. Lillehaug then referenced Minneapolis Ward 3 Precinct 1 and Maplewood Precinct 6 in relation to Mr. Gelbmann's prior assertion; the Coleman campaign asserted that "found" ballots in these two precincts lead to counting errors. Mr. Lillehaug then presented two other examples of "found" ballots; Mr. Gelbmann stated that this second set of "found" ballots occurred in Republican leaning area's and that the Coleman campaign made no objections to there inclusion.

Thrusday, January 29th
Complete Summary: Day 4

Mr. Gelbmann reclaimed his position at the witness stand around 9:04 AM CT, after a brief discussion at the bench, and Mr. Lillehaug continued his line of questioning. They first discussed the state funded training provided to each election auditor and election official. This related to the re-review of rejected absentee ballots; Mr. Gelbmann stated that during the reexamination of rejected absentee ballots, the election officials were not supposed to rely upon the reason presented on the secrecy envelope. The process by which rejected absentee ballots were designated and counted as wrongfully rejected absentee ballots was then discussed. Mr. Gelbmann talked about the 1,394 absentee ballots presented to the State Canvassing and the 654 rejected absentee ballots that were eventually presented by the Coleman campaign. Mr. Lillehaug then lead a discussion on the specific processes employed by each county when submitting wrongfully rejected absentee ballots; Mr. Lillehaug presented several examples from Yellow Medicine and Itasca County. Mr. Gelbmann briefly discussed the process for challenging ballots before reading the State Canvassing board's certified recount result; after which, a recess took place.

Upon resumption, Mr. Friedberg, a Coleman attorney began his questioning. Mr. Friedberg first tried to correlate the increase in absentee ballots submitted and the number of errors in the sorting and eventual counting of these ballots. Mr. Gelbmann then discussed the procedure required to duplicate a ballot; two election judges must be present, from differing political parties. One judge reviews the original ballot while directing the other judge, who is manually creating a duplicate from a blank ballot. The chain of custody was then discussed with regard to several precincts, specifically Maplewood Precinct 6; at this juncture the Coleman campaign moved to dismiss their own claim regarding Maplewood Precinct 6. The conversation was then redirected back toward the topic of wrongfully rejected absentee ballots, specifically with regard to the 401 ballots which were identified by election officials as wrongfully rejected absentee ballots, but never counted.

After lunch, the court decided to postpone Mr. Gelbmann's testimony until the Coleman campaign presented two other witnesses whose absentee ballots were rejected; again these voters were contacted by the Republican Party. The first witness signed his ballot through the use of a computer, and as such his signatures were noted as not matching. The second witness completed his ballot at Hastings City Hall in front of an election official. In both cases, the Franken campaign asked the witnesses if they had any personnel knowledge relating to whether their voters were or were not counted; in both cases the witness said they had no knowledge, outside of what the Republican Party had told them. They both believed that their vote should be counted.

Mr. Gelbmann then went back to the stand and discussed some of the events presented by the two prior witnesses. Mr. Friedberg then resumed the practice of allowing the witness to read a document before subsequently providing additional information relative to their experience. Mr. Gelbmann then discussed a Minnesota law which allows voters who have already voted by absentee to cast another ballot, in person on election day; only the ballot cast on election day counts. Mr. Gelbmann then discussed Minnesota law relative to deceased voters. Mr. Friedberg concluded his questioning, and Mr. Lillehaug asked Mr. Gelbmann to address the number of challenges put forth by each campaign and the number that were actually presented to the State Canvassing board. Mr. Gelbmann's three day marathon then ended.

Joe Mansky, the Ramsey County Election Director was then called to the stand by the Coleman campaign. John Rock, a previously unheard of Coleman attorney, essentially sought to establish Mr. Mansky's position as an election expert with years of experience. He spoke about election day registration and the incidents that are subsequently filed by some precincts. He also spoke about the various mechanisms by which these errors were reported. Mr. Mansky then discussed, for the remainder of the day, the process by which election officials process and verify voter registrations.

Friday, January 30th
Complete Summary: Day 5

The fifth day of the trial began with Mr. Mansky at the witness stand. Mr. Rock led Mr. Mansky through a discussion on inactive and active voters and their relevance to absentee voting; inactive voters must essentially re-register in order to vote. Mr. Mansky then articulated a multitude of legal ways by which a person could obtain a ballot and vote. The conversation then looped back to absentee voting. Mr. Mansky stated that there are two separate absentee ballots; one for registered voters, and one for unregistered or inactive voters. Mr. Mansky eventually discussed the procedures in place for alerting absentee voters of an error. The error must be found more than five days from the election in order for the voter to be notified. On a side note, I voted absentee for the primary and was notified of a witness hyphenation error; they promptly sent me another ballot and my witness corrected the error. Mr. Mansky then laid out the process by which absentee ballots are examined and eventually counted; Mr. Mansky stated that the resources simply do not exist, in both time and man power, to investigate each ballot beyond its face value.

Mr. Rock then directed Mr. Mansky to discuss inherent errors within the counting system, Mr. Mansky responded by stating that election officials are instructed to err on the side of enfranchising voters. Mr. Mansky later went on to list the rejection rate of absentee ballots in Ramsey County; roughly 5% out of a little less than 31,000 cast. Mr. Rock then asked if any rejected absentee ballots should still be counted; Mr. Mansky replied by saying that "a small group" of absentee ballots, no less than 61, which remain rejected qualify to be counted.

The format of the questioning then shifted; Mr. Rock preceded to present several exhibits containing rejected absentee ballots. Mr. Mansky was then instructed to review each return envelope and registration form contained within each Exhibit, there were probably about 20 ballots total, and determine the reason for rejection. In some cases the ballot was originally rejected, and forgotten, in others it was marked accepted but never counted and in other cases the ballot was placed in the pile of 954 ballots which were deemed to have been wrongfully rejected. Mr. Mansky stated that several of the ballot which were never counted in any capacity should have been counted due to an error made by an election official. Mr. Rock then presented a hypothetical situation to demonstrate the possibility of double counting; there were 110 votes and 100 voters. Based upon Mr. Rock's scenario, Mr. Mansky agreed that double counting was a possibility. Mr. Rock concluded his questioning of Mr. Mansky; Mr. Hamilton stated that his cross examination would take "two to three" hours; Mr. Mansky's testimony will resume on Monday.

The next issue the court took heard related to two separate petitions; one filed by 61 voters and represented by Charlie Nauen and the other by 7 voters and represented by Bruce D. Kennedy. The 68 voters are seeking to have their rejected ballots counted. Mr. Nauen spoke first and went on to say that Mr. Mansky just stated that two ballots from Ramsey County belonging to his group of 61 petitioners should have had their votes included in the wrongfully rejected absentee ballot pile. A group of state attorneys and judges then addressed the three judge panel with respect to the previous petitions. Bruce D. Kennedy then addressed the court; Mr. Kennedy put forth the grounds under which the intervention was presented to the court. After Mr. Kennedy concluded, Mr. Langdon, a Coleman attorney, stated that he also believes that these 68 ballots should be counted. He stated that their are other voters with similar claims that deserve to have their votes counted. Marc Elias then took issue with the intervention process and the court took the issue under advisement.

Monday, February 2nd
Week 1 Auxiliary

Over the course of the last week there were seventeen documents released by the court; the most important order is detailed below:

The Court being fully advised concludes that it is appropriate to dismiss Contestants' Maplewood Precinct 6 Claim and St. Paul Ward 3, Precinct 9 Claim.

Therefore, it is hereby ORDERED that Contestants' Maplewood Precinct 6 Claim and St. Paul Ward 3. Precinct 9 Claim be, and hereby are, DISMISSED WITH PREJUDICE. Costs, if any will be addressed at a later date.

Dated: January 30, 2009.

Source: MNCourts.gov [PDF]

The Coleman campaign gave up on excluding some 199 anomalous votes that favored Franken by roughly 53; these precincts were listed in Coleman's original election contest. The only remaining precinct with potential custody issues is Minneapolis Ward 3 Precinct 1; it seems probable that Cindy Reichert, the Hennepin County Election Director, is the only person who can provide testimony with enough weight to settle this issue, one way or another. She will be called to the stand, the question just remains, when?