Friedberg says it's "a constitutional argument, and it's an argument suitable for the Minnesota Supreme Court, not for the trial court."

What's the argument? "We were ahead on the first count, so that's the count that should count, unless we were behind on the first count, and ahead on the recount, then the recount is the count that should count"?

The "constitutional argument," Mr. Bilse, is Equal Protection. Coleman argued that Bush v Gore compels a determination that he would be denied equal protection unless the court adopted what amounted to lax standards that would permit the opening and counting of the absentee ballots he wanted counted.

In a 2/3/09 order denying Coleman’s motion for summary judgment, the three-judge panel rejected Coleman’s argument. The panel observed that unlike the situation in Bush v Gore where Florida lacked a uniform standard for determining “intent of the voter,” Minnesota had “enacted a standard clearly and unambiguously enumerating the grounds upon which an absentee ballot may be opened or rejected…”

After the three-judge panel issued a 2/13/09 order issued a detailed ruling setting forth the rigorous standards required by MN law before an absentee ballot can be opened and counted, Coleman’s legal team, recognizing that their case was indeed, as I posted here, “dead in its tracks,” grew increasingly strident claiming that MN’s electoral system was “fatally flawed” in that absentee ballots previously opened may not have been uniformly subjected to the same rigorous standard.

The problem, as noted in a Franken filing, is that every electoral error does not rise to the level of a constitutional violation. “Under [Coleman’s] theory, any mistake by a local election official—any misapplication of the statutory standard to particular ballots—would constitute a constitutional violation and draw the entire election into question…[making] democratic government impossible.” Franken went on to note that Bush v Gore does not bar local variances in the administration of elections

Coleman's argument also fails because many of these ballots were opened and counted with his consent.

Ernest A. Canning

@ cann4ing on 3/20/2009 @ 5:05 pm PT

Ernest: Thank you ... for explaining where things stand in layman terms ...

Iam, however, confused how the Bush v. Gore can be used as an argument:

(My understanding) the SCOTUS justices' ruling had specifically stated Bush v. Gore was not meant to set future precedent (or something to that effect?).

So in that regard it seems inconceivable Coleman's lawyers could argue Bush v. Gore in the first place.

Even if they could, according to the reasons stated in your comments they are making arguments not even addressed in Bush v. Gore --- which then would render their case moot?

With millions of dollars already spent, at the tax payers expense, on court costs and no feasible chance of winning Norm Coleman, who selfishly put his own political aspirations above the country's best interests in the midst of a crisis, would be wise to bring this drama to an end.

Enough already!

Friedberg comments are surprising in that the Election Contest Court judges have not ruled … by making this comment, he is essentially telling them that they are irrelevant. Not smart … but these judges have been taunted by the Coleman legal team before and they have worked very hard to be fair and not give the MN-Supreme Court a chance to overrule.
Coleman wants to appeal based on violations of Equal Protection but that is not really relevant here.
No voter was denied an opportunity to vote. However those that choose to vote via absentee had to follow certain procedures. In Minnesota, voting is a right, but to vote via absentee is a privilege. The Court should see that there was no bias since the procedures were followed successfully in approximately 280,000 cases but 2% of the participants had problems. The Coleman (and Franken) legal teams agreed that many of these “problems” were rejected for just cause such as violation of the witness requirement, signature mismatches, non-registered voters, etc.
The main argument that is being made is that a county (this may have to be rephrased to “some counties” but only Carver County was discussed in the trial) applied a strict review while other counties were lax. OK, except all candidates were subject to the same review by the county, so those that complied with the rules are probably in proportion to those that did not. This is not a case of a “class of voters” that are being denied … just random people who did not comply with procedures. And if the county did alert the voter to the error, a correction could have been made.

Materiality is also a consideration. If Franken’s lead is 500 and Carver had 83 voters rejected due to strict application of the rules, then even if every voter had been a Coleman voter, Franken would still win. The purpose of an election is to determine a winner, not to determine the precise margin of victory.

I am glad that Coleman has taken his case to trial. The trial is proving that the multiple reviews by local election officials and re-enforced by the State Canvassing Board, Minnesota had a clean election. With 42% of the vote, Franken may be able to claim that he prevailed in this contest, but clearly the voters are not enamored with either candidate. Let’s end the claims of fraudulent and stolen elections and get on to seating a Senator.

Coleman’s talks of appeals are a waste of time … especially if Franken’s 225 vote margin is over 500.

I can understand a politician trying every legality to retain his/her seat, but this has turned ridiculous. Now Coleman wants to drag all of this through the Minn. Supreme Court. We are now 60 days past the election and probably headed for (at least) another 60 days of hearings, posturing and delays. This sounds very intentional. Watching all of this tells me there is a conscious effort to keep Franken from being seated while highly important economic bills are being handled by the senate. Clearly, it is a ploy to delay Franken from reaching the senate. No seat, no vote.

What about all the ballots that Franken supporters kept pulling out of the closet, out of the warehouse, out of the hat, days and even weeks after the election? Is this case just about the technical legitimacy of certain absentee ballots, but not about the gross abuses earlier in the recount? A sense of proportionality is the most common common sense to be absent at the present.

Minuteman

Nobody was pulling anything both parties didn't get to see and approve or challenge. I don't think it's reasonable to call the election officials "Franken supporters", and it doesn't matter who pulled ballots out of anywhere. What matters is who put them in to begin with, that any mistakes be corrected, any crimes be dealt with, all legal ballots be counted accurately and the whole process be completely transparent... no matter whose side anyone is on.

You'll pardon me if I question your sense of proportionality here, I'm sure.

You are correct, Serena, that the U.S. Sup. Ct. stated that Bush v Gore was not supposed to be relied upon as a precedent. It nevertheless is a published decision which attorneys will cite.

The bigger problem is that Coleman did precisely what the Sup. Ct. criticized the Gore legal team for.* In filing his election contest, Coleman sought only to have additional absentee ballots opened and counted in counties where he did exceedingly well. The Franken counter claim sought a counting of a specified set of unopened absentee ballots it contended were improperly rejected in the remaining counties. And where most of the ballots Coleman sought to add were properly rejected, Franken's attorneys produced a greater number of ballots, backed up by voter testimony, that should have been opened and counted.

I anticipate that the net result will be a wider Franken victory margin.

To MN Central: A court must decide a case on the basis of the evidence admitted at trial. The panel assigned to hear the contest entailed three very able jurists who would not let an out-of-court comment like Friedberg's influence their decision.

*The Gore legal team operated from a perceptual disadvantage. The focused on the very slender number of votes lost to hanging chads in a couple of heavily Democratic counties, unaware of the fact that some 90,000 mostly African-American voters had been illegally purged from FL's computerized voter rolls by Katherine Harris & ChoicePoint; unaware of the ability to manipulate the count in precincts where the vote either took place on paperless touch screens or optical scanners.

Ernest A. Canning

... MinutemanCDC_SC said on 3/21/2009 @ 12:01 pm PT...

What about all the ballots that Franken supporters kept pulling out of the closet, out of the warehouse, out of the hat, days and even weeks after the election?
_____________________________________

I followed this election contest closely. Team Coleman never offered "any" evidence that Franken supporters had done any of the things you claim. I'm afraid, Minuteman, that you have fallen prey to a vicious right-wing lie that has no more basis in fact than the ridiculous claim that President Obama was not born in the U.S.--a claim repeatedly made despite an authentic birth certificate and despite the fact that the claim has repeatedly been rejected by our courts as frivolous.

MinutemanCDC asked:

What about all the ballots that Franken supporters kept pulling out of the closet, out of the warehouse, out of the hat, days and even weeks after the election?

There are no such ballots. Feel free to demonstrate (with actual evidence) where I'm wrong.

(HINT1: Don't work too hard, because there are no such ballots. HINT2: Be careful about using already-debunked rightwing conspiracy theory nonsense as "evidence" if there is no actual hard evidence to support it, because it's nonsense. HINT3: See HINT1.)

Norm, albeit a nazi thug and bush licker, should have conceded a long time ago. as for Frankfurter, he should never have been the candidate for the dinocratic party in the first place, someone actually viable should have been running in his place. having said all that, minnesota has turned into a right wing nightmare gulag under that pile of putrid slime, pawlenty. shame on you, minnesota, for electing right wing nazi filth to public offices. shame!

If Friedberg says he's done, I wonder if that means he will or will not be part of the Coleman legal team when they mount their appeal to the MN Supreme Court.

Sparky said:
...minnesota has turned into a right wing nightmare gulag under that pile of putrid slime, pawlenty. shame on you, minnesota, for electing right wing nazi filth to public offices. shame!

Tell it to the first Muslim in Congress, Rep. Keith Ellison.

http://ellison.house.gov/

- Tom

So...... When will we hear the from the court? 2014?