Franken Wins, Coleman Concedes

The Minnesota Supreme Court affirmed the ECC's ruling, which declared Franken the winner, late Tuesday morning. The 32 page order, issued unanimously by the five presiding justices, marked the end of Minnesota's 2008 Senatorial Election. An excerpted summary of the order is presented below followed by Norm Coleman's concession speech:

Filed: June 30, 2009



1. Appellants [Coleman] did not establish that, by requiring proof that statutory absentee voting standards were satisfied before counting a rejected absentee ballot, the trial court's decision constituted a post-election change in standards that violates substantive due process.

2. Appellants did not prove that either the trial court or local election officials violated the constitutional guarantee of equal protection.

3. The trial court did not abuse its discretion when it excluded additional evidence.

4. Inspection of ballots under Minn. Stat. § 209.06 (2008) is available only on a showing that the requesting party cannot properly be prepared for trial without an inspection. Because appellants made no such showing here, the trial court did not err in denying inspection.

5. The trial court did not err when it included in the final election tally the election day returns of a precinct in which some ballots were lost before the manual recount.



PER CURIAM. [Unanimous 5-0 decision.]

Appellants, incumbent Republican United States Senator Norm Coleman and Cullen Sheehan, filed a notice of election contest under Minn. Stat. § 209.021 (2008), challenging the State Canvassing Board's certification that Democratic-Farmer-Labor challenger Al Franken was entitled to receive a certificate of election as United States Senator following the November 4, 2008 general election. After a trial, the three-judge trial court we appointed to hear the election contest issued its findings of fact, conclusions of law, and order for judgment, concluding that Franken received 312 more legally cast votes than Coleman and that Franken was entitled to a certificate of election for the office of United States Senator. The question presented on appeal is whether the trial court erred in concluding that Al Franken received the most legally cast votes in the election for United States Senator. Because we conclude that appellants have not shown that the trial cour's findings of fact are clearly erroneous or that the court committed an error of law or abused its discretion, we affirm.



We turn first to the question of whether Coleman's right to substantive due process under the United States Constitution has been violated. Whether Coleman's right to substantive due process was violated is a question of law, which we review de novo. State v. Netland, 762 N.W.2d 202, 207 (Minn. 2009).


We conclude that our existing case law requires strict compliance by voters with the requirements for absentee voting. Thus, we reject Coleman's argument that only substantial compliance by voters is required. Having rejected this argument, we also conclude that the trial court's February 13 order requiring strict compliance with the statutory requirements for absentee voting was not a deviation from our well-established precedent.



We next examine Coleman's argument that the constitutional guarantee of equal protection was violated in this case.12 Coleman's equal protection argument is two-fold. First, he argues that the differing application and implementation by election officials of the statutory requirements for absentee voting violated equal protection. Essentially, Coleman contends that similarly situated absentee ballots were treated differently depending on the jurisdiction in which they were cast and that this disparate treatment violated equal protection. Second, Coleman contends that equal protection was violated when the trial court adhered to the statutory requirements for acceptance of absentee ballots, in contrast to the practices of local jurisdictions during the election.


The trial court found that election judges applied the election laws in a consistent and uniform manner. The court found that election jurisdictions adopted policies they deemed necessary to ensure that absentee voting procedures would be available to their residents, in accordance with statutory requirements, given the resources available to them. The court also found that differences in available resources, personnel, procedures, and technology necessarily affected the procedures used by local election officials reviewing absentee ballots. But the court found that Coleman did not prove that these differences were calculated to discriminate among absentee voters. Our review of the record convinces us that the trial court's findings are supported by the evidence and are not clearly erroneous. As a result, we conclude that Coleman did not prove his equal protection claim.


The trial court concluded that Bush is distinguishable in several important respects and, as a result, does not support Coleman's equal protection claim. We agree. In Bush, the Supreme Court specifically noted that it was not addressing the question of "whether local entities, in the exercise of their expertise, may develop different systems for implementing elections." 531 U.S. at 109. Variations in local practices for implementing absentee voting procedures are, at least in part, the question at issue here. As previously noted, the trial court here found that the disparities in application of the statutory standards on which Coleman relies are the product of local jurisdictions" use of different methods to ensure compliance with the same statutory standards; that jurisdictions adopted policies they deemed necessary to ensure that absentee voting procedures would be available to their residents, in accordance with statutory requirements, given the resources available to them; and that differences in available resources, personnel, procedures, and technology necessarily affected the procedures used by local election officials in reviewing absentee ballots. As we noted previously, Coleman has not demonstrated that these findings are clearly erroneous.



Coleman next contends that the trial court improperly excluded (1) evidence of absentee ballots accepted on election day and in the manual recount that would not satisfy the standards established by the trial court, and (2) evidence of disparities among jurisdictions in their application of the statutory standards governing absentee ballots. We review the trial court's evidentiary rulings for abuse of discretion. See Peterson v. BASF Corp., 711 N.W.2d 470, 482-83 (Minn. 2006).


In enacting section 204C.13, subd. 6, particularly in light of our interpretation of the same language in Bell, the legislature made a policy decision to limit challenges to an absentee ballot, once it is separated from its return envelope and deposited in the ballot box, to challenges based on the face of the ballot. We conclude that the trial court ruled correctly that Minnesota law provides no remedy for wrongly accepted absentee ballot return envelopes once those envelopes have been opened and the ballots inside deposited in the ballot box. Accordingly, we conclude that the court did not abuse its discretion in excluding the evidence.


As we have explained, in order to prevail on his equal protection claim, Coleman was required to prove intentional or purposeful discrimination on the part of either local election officials or the trial court. But Coleman does not contend that the additional evidence he sought to introduce would have proven intentional or purposeful discrimination on the part of any election officials or the trial court. We therefore conclude that in excluding this evidence, the court did not abuse its discretion.


Coleman also claims that the trial court erred in denying his petition for inspection of ballots for certain precincts in which he alleges that double-counting of ballots occurred. The trial court concluded that Coleman had not met his burden to show that an inspection was needed to prepare for trial, noting Coleman's concession at the hearing on the petition that he would be able to prove his case without an inspection, by calling election judges as witnesses and by subpoenaing voter rolls and ballots. The court also concluded that inspections under Minn. Stat. § 209.06 (2008) are limited to the ballots themselves and do not include voter rolls or other election materials sought by Coleman. Finally, the court noted that the parties had already reviewed the ballots during the manual recount.


Coleman conceded at the hearing on the petition for inspection, and does not dispute here, that he could prove his claim of double-counting by subpoenaing the ballots and election materials and by subpoenaing witnesses to testify. This concession negates any claim that he made the required showing of necessity and any contention that he was prevented from proving his case by denial of the inspection. Coleman called no witnesses with direct knowledge of the handling of duplicate ballots in the relevant precincts, but he did introduce at trial voter rosters, envelopes from accepted absentee ballots, copies of ballots challenged during the manual recount, and machine tapes from the identified precincts in which he alleges double-counting of absentee ballots occurred. On appeal, Coleman has identified nothing additional that an inspection of ballots under section 209.06 would have produced.21 We therefore hold that the trial court did not abuse its discretion in denying the petition for inspection.


Finally, Coleman contends that the trial court erred when it ruled that missing ballots from Minneapolis Ward 3, Precinct 1, were properly included in the State Canvassing Board's January 5, 2009 certification of legally cast votes. During the manual recount, election officials could locate only four of the five envelopes of ballots from Minneapolis Ward 3, Precinct 1. Voting machine tapes showed a total of 2,028 ballots cast and counted in the precinct on election day, but only 1,896 ballots from the precinct were available for the recount, a difference of 132 ballots. The State Canvassing Board determined that an envelope of ballots had been lost and, rather than certify only 1,896 votes in the recount, accepted the election day returns for that precinct.


Coleman articulates no compelling reason why that same principle should not apply here. The ballots are missing, but Coleman introduced no evidence of foul play or misconduct, and the election day precinct returns are available to give effect to those votes. We hold that the trial court did not err in ruling that the election day precinct returns for Minneapolis Ward 3, Precinct 1, were properly included in the tally of legally cast votes.


For all of the foregoing reasons, we affirm the decision of the trial court that Al Franken received the highest number of votes legally cast and is entitled under Minn. Stat. § 204C.40 (2008) to receive the certificate of election as United States Senator from the State of Minnesota.


Source: Supreme Court Order via [PDF]

There are several interesting statements by the MN Supreme Court Justices, most notably the second excerpted paragraph under section III, but any relevance was minimized following Norm Coleman's fifteen minute address to the people of Minnesota:

Within his concession speech, Norm Coleman congratulated "Senator Franken," thanked his supporters and addressed his political future with the following statement: "soon, I presume sometime, we'll get through July fourth, sometime next week. We'll talk a little about what my future is." Coleman also suggested that Governor Tim Pawlenty would sign the Election Certificate because "for all Minnesotans, this is a time to look forward."

Al Franken is scheduled to address the media at 4:15 CT live on CSPAN.

Update [4:24 PM CT]: "I'm not going to Washington to be the 60th Democratic Senator, I'm going to Washington to be the 2nd Senator from the State of Minnesota."

Update [4:26 PM CT]: "I can't tell you when I'll be seated, but I think it'll be early next week."

Update [4:27 PM CT]: "He [Coleman] couldn't be more gracious."

Update [4:28 PM CT]: Al will be a member of the following committees, "Health Education Labor and Pensions which I'm very happy about. I'll be on Judiciary, I'll be Indian Affairs which I asked for and Aging; which I think dovetails nicely with Health Education Labor and Pensions."

Update [4:29 PM CT]: "I will be entering with a great deal of humility."

Update [4:30 PM CT]: "I hope we do get President Obama's agenda through."

Update [4:32 PM CT]: "This [process] has been as thorough and as transparent and painstaking as possible."

Update [4:33 PM CT]: "I'm going to be working for every Minnesotan and I'm going to be thinking about that everyday when I wake up."

Update [4:33 PM CT]: "I probably won't be in Washington until early next week."

Update [4:35 PM CT]: Franken's complete speech is available below:

Franken will become the 100th United States Senator "early next week." The legal process is over, Minnesota has its second Senator.

Published on June 30th at 2:03 PM CT :: 0 Comments

A GOP Operative's Request

The Minnesota Supreme Court is still deliberating on Norm Coleman's latest appeal in the drawn out Senate Election of 2008; but at this point their ruling merely appears to be a legal formality. Even Minnesota's Republican Governor, Tim Pawlenty, has indicated his intent to adhere to the MNSC's ruling by signing the Election Certificate should Al Franken be declared the victor. With a ruling likely to come this week or next, Al Franken seems poised to become the legal victor, and there isn't anything anybody can do about it.

Michael Brodkorb of does however seem intent on altering the public's perception. On June 8th, just five days before his election as the new Deputy Chair of the Minnesota Republican Party, he filed public data practice requests with seven of Minnesota's counties seeking photocopies of rejected absentee ballots.

Mr. Brodkorb filed his two page request with the counties of Anoka, Carver, Dakota, Hennepin, Olmsted, Sherburne and Washington, and the cities of Edina, Minnetonka, Orono and Plymouth. The following excerpt contains the request sent to Anoka County:

Michael Brobkorb
[Poorly Redacted Address]

June 8, 2008

Rachel Smith
Anoka County
325 E Main St W130
Anoka, MN 55303-2465

Re: Data Practices Request

This correspondence is a request for access to public information and data relating to the 2008 general election for United States Senator in your county under the Minnesota Government Data Practices Act ("MGDPA"), Minnesota Statutes, Chapter 13. Minnesota Statutes § 15.17 requires all government entities to make and maintain all records relative to their official activities. Minnesota Statutes § 13.03, subdivision 1 requires all government entities to keep records that contain government data in a way (or ways) that makes the data easily accessible for convenient use.

The undersigned requests copies of that portion of the front side of all ballots relative to the 2008 United States Senate general election contained within rejected absentee ballot envelopes in your possession that were not submitted late and were not submitted by persons who otherwise voted in the 2008 general election (either in person or by replacement absentee ballot).

This request does not seek to have the undersigned open or unseal any absentee ballot envelopes; to the extent any such envelopes have not yet been opened, the undersigned requests that an election judge do so. This request also does not seek access to any data regarding any individuals, including voter registration applications, voter registration lists or any other information related thereto and subject to restricted access under Minnesota Statutes § 201.091. Finally, this request does not seek copies of the absentee ballot envelopes themselves or any accompanying materials, such as absentee ballot applications. In short, this request in no way seeks to ascertain which person(s) voted for which candidate(s). The request can be easily complied with while protecting the secrecy of the ballots.

This information/data is clearly public information under the MGDPA. As you know, Minn. Stat. § 13.03, subdivision 1 provides that all government data collected, created, received or maintained is public information unless classified by statute, federal law or temporary classification as confidential, private, nonpublic or protected nonpublic data. No such classification exists for the information requested. No Minnesota statute provides that the ballots contained within uncounted rejected absentee ballot envelopes is nonpublic or private information if opened by an election judge; although Minnesota law requires you to securely maintain all election materials, no Minnesota statute exists which denies the public the right to inspect and/or receive copies of the ballots contained within rejected absentee ballot envelopes.

As the agency with jurisdiction over all ballots and election materials within your county, it is your duty to comply with data practices requests under the MGDPA and the undersigned is not aware of any statutory or other authority which prohibits you from opening the rejected absentee ballot envelopes while maintaining the secrecy of each person's intended vote for the purposes of complying with this request.

There is simply no risk whatsoever that the secrecy of any ballot(s) will be compromised. Again, this request seeks only a photocopy of the section of ballots relative to the 2008 general election for United States Senator contained within certain rejected absentee ballot envelopes in your possession or under your control and in no way seeks to ascertain which person(s) voted for which candidate(s).


Thank you.


Michael B. Brodkorb

[emphasis added]

Source: Data Practices Request to Anoka County via Minnesota Democrats Exposed [PDF]

There are several catastrophic assumptions and falsehoods located within Brodkorb's meager request. I've bolded the fallacious and contradictory portions from his request above and will now address each item below.

Let's begin by addressing the issue raised within the first bolded portion; the need for an election judge to open the requested ballots. This triggers two questions, the first of which I will now address. It is necessary for an election judge to open the currently sealed and rejected absentee ballots because of MN § 13.37:


Subd. 2. Classification.

The following government data is classified as nonpublic data with regard to data not on individuals, pursuant to section 13.02, subdivision 9, and as private data with regard to data on individuals, pursuant to section 13.02, subdivision 12: Security information; trade secret information; sealed absentee ballots prior to opening by an election judge; sealed bids, including the number of bids received, prior to the opening of the bids; parking space leasing data; and labor relations information, provided that specific labor relations information which relates to a specific labor organization is classified as protected nonpublic data pursuant to section 13.02, subdivision 13.

[emphasis added]

Source: 13.37, 2008 Minnesota Statutes via Minnesota Office of the Revisor of Statutes


Subd. 9. Nonpublic data.

"Nonpublic data" means data not on individuals that is made by statute or federal law applicable to the data: (a) not accessible to the public; and (b) accessible to the subject, if any, of the data.


Subd. 12. Private data on individuals.

"Private data on individuals" means data which is made by statute or federal law applicable to the data: (a) not public; and (b) accessible to the individual subject of that data.

Source: 13.02, 2008 Minnesota Statutes via Minnesota Office of the Revisor of Statutes

Minnesota § 13.37 essentially states that unopened absentee ballots are private data and are therefore inaccessible to the general public. The subject of this request, rejected absentee ballots, are currently unopened and therefore qualify for protection under § 13.37.

Brodkorb may think he is circumventing § 13.37 by explicitly asking the election judges to open his requested ballots, but data practice requests do not fall within the duties of elections judges with regard to opening absentee ballots. In fact the only mechanism by which absentee ballots can be opened by an election judge falls within the jurisdiction of § 203B.12:


Subd. 4. Placement in container; opening and counting of ballots.

The ballot envelopes from return envelopes marked "Accepted" shall be placed by the election judges in a separate absentee ballot container. The container and each ballot envelope may be opened only after the last regular mail delivery by the United States postal service on election day. The ballots shall then be initialed by the election judges in the same manner as ballots delivered by them to voters in person and shall be deposited in the appropriate ballot box.

[emphasis added]

Source: 203B.12, 2008 Minnesota Statutes via Minnesota Office of the Revisor of Statutes

The rejected absentee ballots requested by Brodkorb are not marked with "Accepted" by definition because they were "Rejected" under § 203B.12 subd 2. As a result of their current "Rejected" status, the absentee ballots in question would never qualify for the "separate absentee ballot container" and could therefore never be opened by an election judge.

At this point, the first half of Brodkorb's argument is clear; he wants election officials to open his requested rejected ballots. Brodkorb then justifies this request by stating, in the second bolded portion, that the ballots then become public data if they are opened by election officials. It doesn't make a whole lot of sense; he is attempting to justify one action with another. The rejected ballots are private data, so to make them public, an election judge needs to open them; but an election judge cannot open them because they are rejected. Brodkorb's entire argument is circular and without merit.

After seventeen days, Brodkorb posted a follow-up to his data practice requests:

I have received responses to all of my requests for public data and every county and city has denied my request. I'm reviewing my options and I'll have updates on this subject in the next 24 hours on Minnesota Democrats Exposed.

Source: Update: MDE Exclusive: Data Practices Request Filed Today Requesting Copies of Certain Rejected Absentee Ballots via Minnesota Democrats Exposed

Brodkorb's request appears to have been flatly denied by each jurisdiction. He does however have at least one other option. Brodkorb could bring forth an action to compel discovery of these rejected ballots in accordance with MN § 13.03 subd. 6. I don't know how this would work, or if rejected absentee ballots even qualify for discoverability.

It will be interesting to see if Brodkorb continues to pursue these data practice requests when he becomes the new Deputy Chair of the Minnesota Republican Party this Wednesday.

Published on June 29th at 1:52 PM CT :: 0 Comments

Disbursements for Franken

While the MN Supreme Court deliberates on Norm Coleman's latest appeal, the Election Contest Court addressed and resolved the issue of disbursements; the monetary reimbursement of court associated fees. The legal process began shortly after the ECC declared Franken the victor with the first disbursement filing arriving on April 28th from the Franken campaign; just 15 days after the court's final judgment.

The Franken document totaled 394 pages with 384 pages of exhibits. The first ten pages contained the body of the filing while the remaining 384 pages, of exhibits, were found within a gray three ring binder. The digitization of the exhibit portion was just completed this morning by the Ramsey County Court Administration Office. Prior to purchasing the first ten pages, and then later receiving the exhibits from a Ramsey County Court Administrator, no portion of this document could be publicly accessed without making a physical trip to the Ramsey County Court House. The entire document has been converted to PDF for public consumption below with the highlights excerpted:

David L. Lillehaug, being duly sworn, on oath says that he is one of the attorneys for Contestee Al Franken ("Contestee") in the above entitled action and certifies that he has investigated the costs and disbursements claimed herein, and that the following is a true statement of the taxable costs and disbursements incurred by Contestee; and that each and every item thereof has actually and necessarily been paid or incurred in this action. Documents supporting each of Contestees' costs and disbursements are attached.

Statutory Costs                           $205.50 
   (Minn. Stat. § 549.02, subd. 1)	
Court Filing Fees                       $1,130.00 
   (Minn. Stat. § 357.021) (Tab A)	
Deposition Transcripts of Testifying    $7,315.30 
   Witnesses (Minn. Stat. § 357.31)	
   (Tab B)	
Written Deposition Transcripts            $812.50 
   Entered Into Evidence 	
   (Minn. Stat § 357.31) (Tab C)	
Deposition Transcripts Entered          $3,200.70 
   Into Evidence	
   (Minn. Stat. § 357.31) (Tab D)	
Trial Transcripts                      $35,382.55 
   (Abraham v, County of Hennepin, 	
   622 N.W.2d 121, 129)	
   (Minn. Ct. App. 2001) (Tab E)	
Trial Exhibits                         $26,576.38 
   (Minn. Stat. §§ 357.31	
   and 357.315) (Tab F)	
Data Practice Requests/Subpoenas       $59,078.89 
   (Minn. Slat. § 357.31) (Tab G)	
Trial Technology & Equipment            $6,031.23 
   (Minn. Stat. § 549.04) (Tab H)	
Photocopying & Service of Trial Motions $2,152.51 
   (Minn. Stat. § 549.04) (Tab I)	
Trial Subpoenas & Witness Fees (Tab J) $19,625.07

Total Costs and Disbursements         $161,510.63 

Dated: April 28, 2009

Source: Contestee's Bill of Costs and Disbursements via [PDF] [Exhibits: 394 Pages, 12.7 MB, PDF]

The list above contains the itemized cost for each subheading for which the Franken campaign is seeking reimbursements from the losing party; in this case, the Coleman campaign. It's also pertinent to note that the Franken campaign did not provide a rational for why any item should be reimbursed; they were simply presenting the ECC with a probable list of expenditures which they believe qualify for reimbursement.

On another note, the projector used during the ECC trial was actually provided by the Franken campaign. The State of Minnesota does not provide a projector for use in their most prestigious court room; this is absolutely astonishing to me. I also found it humorous that the Franken campaign made a roughly $600 purchase of printing related goods from BestBuy (on page 329); BestBuy was the 14th largest corporate supporter to Norm Coleman according to for the period from 2007-2008.

The Coleman campaign then responded to Franken's list of applicable expenditures on May 8th by providing their rationale for why some of the listed items do not qualify for compensation. The introduction and conclusion of their opposition is excerpted below with the accompanying PDF as published on the MNCourts website on May 21st:

I. Introduction

Contestants Cullen Sheehan and Norm Coleman (collectively, "Contestants"), by and through the undersigned counsel, hereby object to Contestee Al Franken's ("Contestee") Bill of Costs and Disbursements, notice of which Contestee served May 6, 2009. Contestee has not provided sufficient detail and/or documentation from which to determine the basis of many of the costs he identifies and the purpose for which they were incurred. Nor has he provided a sufficient explanation as to whether the costs claimed were necessary or reasonable, and it is his burden to do so. Accordingly, this Court should disallow the taxation of costs and disbursements to the Contestants to the extent Contestee has inadequately described his costs or it deems them unnecessary or unreasonable.


III. CONCLUSION For the foregoing reasons, Contestants respectfully request that this Court disallow Contestee's costs and disbursements to the extent he has improperly classified them as "costs," inadequately described them, or failed to justify them as necessary and reasonable.

Dated: May 8, 2009

Source: Contestants Objections to Contestees Bill of Costs and Disbursements via [PDF]

Unsurprisingly, the Coleman campaign essentially argued that the Franken campaign did not adequately provide needed detail. The brunt of their argument can be summarized with the following quote from the third page, "[t]he burden is on the prevailing party [Franken] to show that its claimed costs are necessary and reasonable." The Coleman campaign also took issue with the expedited status of the many transcripts and witness filing fees that the Franken campaign incurred. From a details point of view, the Coleman filing did not contain any attached exhibits or material evidence supporting any of their claims.

The Franken campaign responded on May 13th in 9 pages by addressing each of their claims and Coleman's associated refutations. The Coleman campaign did not refute each item as the Franken campaign noted $5,392 worth of requested disbursements lacking objections. The introduction and conclusion of Franken's response is excerpted below as posted on the MNCourts site on May 21st:

Contestee Al Franken ("Contestee") respectfully submits that his costs should be awarded and in the full amount requested pursuant to Minn. R. Civ. P. 54.04. Contestee has submitted a sworn affidavit and numerous invoices documenting costs and disbursements necessarily incurred, as required. Contestants have submitted no affidavit in response. Nor have they suggested that the total amount requested is unreasonable for a complex, seven-week, exhibit-intensive trial. Instead, they raise a series of ill-founded objections, all of which should be rejected. Contestee's costs were reasonably incurred, necessary to the defense of Contestants' lawsuit, and are fully recoverable under Rule 54.


For all of these reasons, Contestee submits that the full amount itemized in the Bill of Costs and Disbursements should be taxed to Contestants. The costs were reasonably incurred, necessary for the presentation of relevant and admissible evidence at trial, and should be awarded to Contestee as the prevailing party in this action pursuant to Rule 54.04.

Dated: May 13, 2009

Source: Contestees Response to Contestants Objections to Bill of Costs and Disbursements via [PDF]

The ECC issued their ruling today by awarding the Franken campaign roughly two-thirds of their requested disbursements. The publicly available filing from the ECC is fairly terse and without details; the entire document is quoted below:

You are hereby notified that a judgment has been entered in the above entitled matter Pursuant to The Findings of Fact, Conclusions of Law, and Order for Judgment, Judge Elizabeth A. Hayden, Judge Kurt J. Marben and Judge Denise D. Reilly dated April 13, 2009.

Judgment Information

Entered Date: April 14, 2009
Debtor(s): Cullen Sheehan; Norm Coleman.
Creditor(s): At Franken

Monetary Award:
Monetary Amount: $94,783.15

A true and correct copy of this notice has been served by mail upon the parties. Please be advised that notices sent to attorneys are sent to the lead attorney only.

***Pursuant to MSA 548.09, Judgment shall be docketed upon the filing of an Affidavit of Identification of Judgment Debtor***

Note: Costs and interest will accrue on any money judgment amounts from the date of entry until the judgment is satisfied in full.

Dated: June 10, 2009

Source: Notice of Entry of Judgment Taxation of Costs via [PDF]

The ECC order appears to retroactively take effect on April 14th and requires the Coleman campaign to pay $94,783.15 in reimbursements to the Franken campaign. I am unsure as to when the "date of entry" officially begins; the interest rate on any delinquent payments is also not explicitly given. The ECC may have also provided additional documentation that has not yet been made available.

A decision from the MN Supreme Court is still pending, but according to John Kostouros the Director of Communications for the Judicial Branch, their opinion "will be released during normal business hours (8 a.m. to 5 p.m., Monday-Friday)." Until this unknown date occurs, political posturing will continue as several outside groups have filed additional lawsuits relating to the MN Senate Election. While the outcome rests solely in the hands of the MN Supreme Court, the battle for public opinion never ends.

I'll try to detail these auxiliary lawsuits later next week, after completing the necessary research.

Published on June 11st at 11:09 PM CT :: 0 Comments

MNSC Oral Arguments

The Minnesota Supreme Court convened today at 9 AM CT for the oral arguments associated with Norm Coleman's election appeal. The proceedings lasted approximately 69 minutes; upon their conclusion, each candidate's representation addressed the media on the second floor of the Minnesota Judicial Building.

The unabridged oral arguments follow as publicly provided by the Minnesota Judicial Branch and Twin Cities Public Television; low bandwidth audio from within the chamber is also available:

Video: .WMV, 01:08:47, 78.1 MB [Mirror:]
Audio: All files are .WAV, Part 1, Part 2, Part 3

Coleman's lead attorney, Joseph Friedberg began the hearing with what was supposed to be a ten minute introduction. Ten minutes turned into thirty as the five judge panel peppered Coleman's representation with questions and critiques. Despite the barrage of questions, the most telling exchanged occurred in the opening moments of the hearing:

Justice Page: We have one case for argument this morning, in the matter of the contest of general election held on November 4, 2008 for the purpose of electing a United States Senator from the State of Minnesota. Mr. Friedberg I see you have reserved 10 minutes for rebuttal.

Joseph Friedberg [Coleman]: With the court's permission your honor.

Justice Page: You may proceed when you are ready.

Mr. Friedberg: Morning and may it please this court; my name is Joe Friedberg, I represent [Norm Coleman]. Let me begin by saying that Minnesota is quite different from many states. We have problems within our institutions and when we do, we deal with them candidly and openly, we don't minimize them or sweep 'em under the rug to be discovered later by a federal court during 1983 litigation. That's why finding of fact 47 of the trial court is so surprising. Announcing that we are proud of rejecting only 0.5% of our total ballots cast in November is misleading at best. The only ballots that get rejected are absentee ballots; and our officials rejected 4% of them; 12,000 citizens who made good faith efforts to vote were disenfranchised for a variety--.

Justice Page: Did these 12,000 citizens comply with the absentee ballot voter requirements.

Mr. Friedberg: Many of them did substantially your honor, many of them did.

Justice Page: Substantially? What does that mean?

Source: Minnesota Judicial Branch [Mirror:]

The remainder of Mr. Friedberg's opening address revolved around Justice Page's seemingly rhetorical, yet legally unanswered question quoted above. The arguments meandered from justice to justice as Friedberg attempted to answer each question. Justice Anderson, Dietzen, Gildea and Meyer each took issue with the Coleman campaign's lack of evidentiary support with regard to their inconsistent application of the strict vs. substantial compliance argument. Justice Meyer prominently entered the fray with this exchange toward the end of Mr. Friedberg's initial rebuttal:

Justice Meyer: Where is evidence from the overwhelming majority of the counties and cities?

Mr. Friedberg: Every auditor we called, as I recall, made exceptions [to the admittance of absentee ballots]. Now I think we only called 26 or 27--.

Justice Meyer: And we have 87 counties, we are reviewing the work of a panel of three trial court judges here and they took evidence. Where is the evidence? Even as you called, as you said, you didn't even call witnesses from a majority of Minnesota's counties. You are asking us to presume, based on the testimony from a sampling of counties that that practice is applied to a majority of the counties.

Source: Minnesota Judicial Branch [Mirror:]

Friedberg responded by hesitantly referencing the assumed equality of populations within Bush vs. Gore to compare the "relaxed standard in Brower County with the unrelaxed standard in Palm Beach." Friedberg would then go on to state that "we have made our case" when "Plymouth kicks out 75 for signature mismatches and 31 counties in the state kick out none." I think Friedberg has a valid point from a mathematical standpoint if true; the Plymouth scenario presents a significant outlier and the aforementioned sampling of "26 or 27" counties represent a statistically sound sampling of all 87 counties. An inconsistent application of absentee ballot compliance in "26 or 27" counties would indicate to me, although devoid of legal rigor, that a problem existed, regardless of the remaining 50 or so counties. Whether the Coleman campaign adequately provided evidence to support this claim is vague at best.

Mr. Friedberg's time expired and Marc Elias, Franken's lead attorney, stepped up to the podium whereupon stating his name received his first question from Justice Page:

Justice Page: Council, before you get to that finding of fact, let me ask you a question. Hopefully council for the other side will be able to respond to this on the rebuttal. To the extent that the United States Senate will make the ultimate decision here, and the extent that they don't have to follow what we do. How do we issue an opinion, without it being an advisory opinion? In essence, do we have authority to do anything here?

Marc Elias [Franken]: Your Honor, this question was raised with the district court as to whether the court had jurisdiction. The court found, and we believe appropriately so, that the court had jurisdiction to determine who received the most lawful votes, even though the Senate has within its jurisdiction to decide who is seated.

Source: Minnesota Judicial Branch [Mirror:]

Elias would then go onto quote a South Dakota case involving Tom Daschle from his days as a Congressman. The referenced case was eventually linked to a Supreme Court decision stating that so long as the state process does not impede the US Senate, the state court is not "deprived of jurisdiction." The MNSC clearly has the power to declare a winner under Minnesota Statute, but the US Senate is under no obligation to act in accordance with any decision. The issuance of an election certificate for the sole purpose of full representation is irrelevant to the Supreme Court's present responsibility; an election certificate will apparently only be issued upon the thorough completion of the appeals process. The sole duty of the MN Supreme Court is to determine the candidate who received the largest number of legally cast votes, not to ensure federal representation or for any other purpose.

Elias would then go on to perform a small bit of math in the hopes of illustrating the futility of the Appellants' case:

Mr. Elias: From the March 31st order of the trial court, in which [the Coleman campaign] held that of all the rejected absentee ballots, the parties proved registration for approximately 650; 650 of all of the ballots presented to the court. That's voter registration, that's not all of the other requirements that appellants now have complaints about. But this is the most fundamental requirement, that the voter be registered. Of those 650, 351 were opened and counted. So the universe of ballots, properly plead and about which this trial took place, stands at 299. Now, obviously the margin separating the two candidates is 312. As a result, even if everyone of the three-hundred or so ballots, for which voter registration was proven, doesn't mean the witness was registered, doesn't mean that the certificate was completed, it doesn't mean that they only cast one ballot, but that they were at least registered. Even if all three-hundred of those were for the appellant, and even if all three-hundred met all other requirements, it would still be impossible for the appellants to make up the difference.

Source: Minnesota Judicial Branch [Mirror:]

The remainder of Elias' time was spent discussing the finer points of due process and equal protection. Elias contended that the discrepancies between each county served to "grease the joints" of election reporting. He later defended any breach of due process or equal protection on the grounds that the inconsistencies were not intentional or systematic and could therefore not be classified as in bad faith or fraudulent as required within Bush vs. Gore. Elias concluded his presentation by stating that election officials used "the different tools, available to them in the different jurisdictions" to "administer a fair election" within the confines of the law.

Mr. Friedberg then returned to the podium for the final fifteen minute stint and made three main assertions before the court adjourned. He first presented the varying processes by which each county voided an invalid ballot, thus potentially creating cases where the voter was registered, but their vote was not counted due to a failure to comply with another statutory requirement. Friedberg then reasoned that these registered voters should have their vote counted based upon the application of substantial compliance. Justice Page then questioned the lack of evidence presented by the Coleman campaign specifically relating to these uniquely registered and rejected voters. Friedberg countered by stating that the ECC would not accept the evidence despite his effort, to the point of "test[ing] the trial court's patience."

Justice Anderson then explicitly asked Friedberg if their were any instances of fraud. Friedberg responded by simply stating "absolutely not" and added that there was no fraud of any kind; election, voter or otherwise.

During Elias' statement, Justice Deitzen began to muddle through the messy statute associated with the challenging of ballots; Deitzen would later finished his line of questioning with Friedberg at the helm. Although the statute is not definitive, the application, as implement by the Attorney General during the recount, precluded either campaign from challenging the inclusion of any absentee ballot. This meant that once an absentee ballot was included by an election official for any reason, it would be opened and counted. This practice differed from the in-person portion of the recount in which the campaigns were allowed to challenge the election officials' ruling.

Upon conclusion of the hearing, Norm Coleman and Joseph Friedberg jointly addressed the media: