Guest blogged by Ernest A. Canning

Operating out of an undisclosed location, former Sen. Norm Coleman's attorney, Ben Ginsberg, announced that the Coleman legal team had filed a notice of appeal with the Minnesota Supreme Court, seeking to overturn the three-judge panel decision [PDF] declaring that Al "Franken received the highest number of lawfully cast ballots in the November 4, 2008 general election for United States Senator and is entitled to receive the certificate of election."

Ginsberg asserted that the appeal was based on the same contentions made during the course of the election contest, especially as it relates to equal protection and an alleged disenfranchisement of some 4,400 Minnesota voters.

Franken attorney, Marc Elias, responded, noting that five of the six claims made by Coleman's appeal seek not to add additional votes but to delete votes already counted. Elias announced on TheUptake.org that he plans to file a motion on Tuesday with the MN Supreme Court asking that the court order expedited briefing, with Coleman's brief to be filed by Monday Apr. 27, and Franken's response on May 2.

There's not a whole lot new or unexpected yet here, for the moment, though a review of the political balance of the MN Supreme Court who will hear Coleman's appeal is probably worth a quick look, right about now...

Guest Blogged by Ernest A. Canning

“This long delay in the seating of Minnesota’s second U.S. Senator has come at a time when our state badly needs help from Washington. Since Election Day, Minnesota has lost 56,000 jobs. Since Election Day more than 9,000 Minnesota families have lost their homes to foreclosure.”
--Senator-elect Al Franken (D-MN), 4/13/09 statement

The Monday, April 13, 2009 decision [PDF] came as as no surprise, certainly not here at The BRAD BLOG where we concluded on Feb. 22, 2009 that former Sen. Norm Coleman’s legal challenge to the Jan. 5, 2009 bi-partisan MN state canvassing board's determination that Al Franken had won the U.S. Senate election was “dead in its tracks.”

Earlier this month, at a time when the mainstream media got it wrong, we accurately reported that the April 7, 2009 order [PDF] meant that the last of the lawfully cast votes had been counted; that Franken won, and; Coleman lost. We went on to predict that the three-judge panel would likely “provide a written explanation of its denial of any other relief…when it enters a final judgment…” We added: “But make no mistake. There are no more votes to be counted. 312 votes is the margin of victory for Al Franken over Norm Coleman.”

In fact, there were no more votes to be counted, as we reported, even as the bulk of the rest of the media hedged their bets. So with the votes all tallied determining that Franken was the victor, and Coleman lacking any legitimate legal recourse, what are Franken's legal and political options, and when might he finally take his rightful seat in the U.S. Senate?...

That's right, according to AP tonight, following the just released final ruling [PDF] from the 3-judge election contest court in Minnesota, Senator-elect Al Franken (D-MN) is not the "winner" of the election. Rather, he's merely the "leading vote-getter."

Are they kidding?! "Leading vote-getter"?! Apparently not.

Will that be how AP reports the results of elections on Election Nights from now on? The one with the most votes counted in the unofficial results will be the "leading vote-getter"? Somehow, we've got the feeling that AP's headline refers only to this race, and only since it's Franken, not Coleman, who actually won.

As The BRAD BLOG pointed out late last week, Franken isn't "leading" as the New York Times, MSNBC and others reported it last week after the court's final tally of all lawfully cast ballots concluded. And he certainly isn't the "leading vote-getter." Franken won. After one of the most painstaking and transparent hand counts, and then one of the longest election contests in U.S. history, it has been determined that Franken received more lawfully cast votes than anybody else in the race. Period. Furthermore, he has no legal leg to stand on in his likely appeal(s), as we detailed last week. All of that makes Franken the winner of the election, and former Sen. Norm Coleman the loser.

If Coleman wishes to try to overturn Franken's win --- and he's promised an appeal to the MN Supreme Court at the very least --- that's up to him. But Franken won the election. Got that AP? New York Times, et al?! Is that so difficult to report accurately?!

UPDATE 5:41pm PT: The rest of the media, other than AP, appear to be doing better in reporting on Franken's win tonight...

UPDATE 7:13pm PT: NY Times' headline: "In Minnesota, Another Blow to Coleman". Apparently "the paper of record" continues it's allergy to the word "win," along with AP. Downplaying the facts of the matter, Adam Nagourney writes tonight:

"Further diminishes his hopes of holding onto his seat"?! That, despite the rather clear pronouncement in the MN court's ruling today [PDF]:

Is that unclear?! In most worlds, other than the Times' and AP's in 2009, that would mean Franken has won. But the Times, like AP, just can't seem to say it. Now why would that be?

UPDATE 7:53pm PT: A commenter at DU notes wryly:

Guest Blogged by Ernest A. Canning, with Brad Friedman

In his March 31st article at Media Matters, Eric Boehlert contrasted the difference in corporate media coverage between Florida's 2000 Presidential election contest and Minnesota's 2008 U.S. Senate election contest. "Norm Coleman's a sore loser," Boehlert argued, and asked "Why won't the press say so?"

He details the striking difference in the corporate media coverage of the two races, where Florida 2000 was both much closer and, as it would determine the Presidency of the United States, arguably more 'important' to get right, and yet the constant media framing continuously painted Al Gore as a "sore loser" for not bowing out 'gracefully' or 'admitting defeat' in the days following the razor-thin election (which, as we would learn later, Gore had actually won, having received more votes across the state of Florida [PDF] than George W. Bush, had the U.S. Supreme Court not kept the ballots from actually being counted).

But to go one further than Boehlert, we'd ask not why the media fail to describe Coleman as a "sore loser," but rather, why it is that --- particularly since Tuesday's final count of any remaining, lawfully cast, previously uncounted absentee ballots --- the media fail to describe Coleman as the loser at all, much less a sore one.

From the New York Times to AP to MSNBC, and even Democracy Now! et al, despite all countable ballots having now been counted, and clear rulings having been issued by both the MN Supreme Court and the bipartisan three-judge panel overseeing the contest, the media seem to have developed an aversion to using the "L" word --- loser --- in their coverage of the MN contest. Perhaps it's because they're listening to only one side of the argument (Coleman's), but the facts of the case, and the many clear court decisions, leave no question that Franken is the winner, and Coleman is the loser. So why won't they say so?...

Guest Blogged by Ernest A. Canning

Author and former radio talk show host Al Franken, the Democratic challenger for the U.S. Senate seat in Minnesota, will be the state's next U.S. Senator, according to a final tally by the bi-partisan three-judge panel overseeing challenger Norm Coleman's election contest against him.

This morning in St. Paul, officials from the Minnesota Secretary of State's office, under the in-court direction of the three-judge Election Contest panel in the former Senator's contest against Franken, tallied all remaining lawfully cast absentee-ballots that were not previously opened and counted. This was done on camera, in open court. The attorneys from both sides, along with the media, were all present.

The final tally of the remaining ballots was 198 votes for Franken, 111 votes for Coleman and 42 votes for "other." When this is combined with the initial 225 vote lead, certified by the bi-partisan State Canvassing Board in December, it adds up to a 312 vote Franken victory, arrived at by both a transparent, post-election hand-count late last year, and the additional tallies added under the painstaking care exercised by the three-judge panel in Coleman's three-month long contest trial.

Al Franken has now won the U.S. Senate seat, but do Coleman's promised appeal(s) stand a chance of winning? And will the Democrats in the U.S. Senate now assume their Constitutional right to dutifully seat the Senator from Minnesota?...

Just in from St. Paul, the 3-judge panel in MN's U.S. Senate Election Contest have returned to issue a ruling...

• The court's ruling is posted in full here [PDF]

Al Franken's attorney Marc Elias says: "We are pleased...Obviously, the math is going to be very difficult for former Sen. Coleman and his lawyers at this point."

Former Sen. Norm Coleman's attorney Ben Ginsberg admits: "It is pretty much of a longshot with that few ballots being put in play...We are disappointed. But we feel the court is wrong and we will appeal." During a teleconference this afternoon he strongly hinted they plan to appeal all the way to the U.S. Supreme Court, if necessary.

Earlier this week, Republican Sen. John Cornyn, chair of the Republican Senatorial Campaign Committee (RSCC) threatened "WWIII" if the Democrats seat Franken before they appeal the case to the U.S. Supreme Court, if necessary, and even if those appeals take "years."

After reviewing evidence for some 980 previously rejected absentee ballots, as submitted for consideration by both candidates, the judges found that just 400 of them met likely grounds for being opened, counted and added to the final results, though only once they are able to review the actual ballots themselves will they know for certain. They rejected Coleman's plea to use lenient standards for determining which ballots should be counted, holding instead to the strict rule of law, and allowing ballots only for possible counting if they were clearly, legally cast, according to very specific state parameters.

The judges review, they took pains to point out, was exceedingly thorough...

As we wait for the 3-judge panel in Minnesota to issue their verdict in former Sen. Norm Coleman's U.S. Senate race, in which the Democratic challenger Al Franken was found to be the winner by a bi-partisan state canvassing board, D.C. lawmakers are cranking up the political battle which awaits beyond that decision, which could come any day now, and its predictable appeal to the MN Supreme Court by the loser (who will "probably" be Coleman, according to his own attorney).

Sen. "Big Bad" John Cornyn (R-TX), the chair of the National Republican Senatorial Conspiratorial Committee (NRSC), is now threatening "World War III" if the Dems try to seat Franken before a U.S. Supreme Court appeal is completed, or even a new federal suit that could be filed by Coleman in U.S. District Court if he chooses...even if those additional judicial processes could take "years"...

According to a transcript of a radio appearance this week by former Senator Norm Coleman's attorney, Joe Friedberg, the Republican will most likely lose his election contest against Al Franken for the U.S. Senate seat in Minnesota.

Hotline's Jennifer Skalka quotes Friedberg as conceding that Coleman will "probably" lose when the 3-judge panel currently deliberating the case, which both sides rested last week, announce their verdict.

"I think it's probably correct that Franken will still be ahead and probably by a little bit more," Friedberg admitted, after announcing that he was "done" with the case.

The Democratic challenger, and now apparent Senator-elect Franken was certified by the bi-partisan state canvassing board to have received 225 more votes than Coleman, out of some 2.9 million cast, at the end of the painstaking, transparent, post-election hand-count of all of the states paper ballots. During the course of Coleman's election contest, which followed that hand-count, Franken gained another 50 or so votes after it was determined that a number of legally cast absentee ballots were inappropriately rejected by election officials.

The 3-judge election contest panel may reach their verdict at any time. Among their decisions is expected to be a finding on whether another 2000 or so rejected absentee-ballots, submitted for consideration by both Coleman and Franken, were "legally cast" and if their results should be added to the final totals. Even so, statistics mavens --- and results of already-counted absentee ballots --- suggest that Coleman will likely have a difficult time closing the gap against Franken, even if all of those currently-uncounted ballots are counted and added to the totals.

Coleman's lead attorney, Friedberg, would now seem to be admitting that and hanging any last hopes he may have on "a constitutional argument, and it's an argument suitable for the Minnesota Supreme Court, not for the trial court."

Our previous coverage of the Coleman/Franken election contest, is indexed here.

The short transcript, posted by Hotline, from Wednesday's interview with Friedberg on KFAN's Dan Barreiro Show, hosted by fill-in Ron Rosenbaum, follows below...

Imagine, if you will, that the situation had been reversed, and that it had been Norm Coleman who was found to have received more votes than Al Franken for the U.S. Senate seat in MN.

Imagine if Al Franken's campaign, as opposed to Norm Coleman's, had now been found to have disclosed the names and credit card numbers of their donors on their own website, where they also inappropriately stored the unencrypted three-digit security codes of contributor credit cards, violated state law by failing to notify anybody about it, and then lied about it.

Imagine if everything --- actually, if any one of the dozens of improprieties --- that Norm Coleman has pulled since the November election, had been done by Al Franken instead.

Might Sean Hannity be repeating, over and over, something akin to the following for three hours a day on the radio (over our publicly-owned airwaves), and during his hour-long solo Fox "News" freak show, five days a week??...

Guest Blogged by Ernest A. Canning

Last Friday, Al Franken's legal team argued a motion for the court to summarily dismiss former Republican Sen. Norm Coleman's U.S. Senate election contest in Minnesota.

In support of the motion to dismiss, Franken attorney Marc Elias argued that Coleman had filed a "scattershot petition"; that in five weeks Coleman called more than 50 witnesses, placed in evidence thousands of pages of material, yet proved little more than a handful of previously-rejected absentee ballots should be opened and counted.

Moreover, Elias noted that eight of Coleman's original claims had been abandoned, pointed out that the court had previously ruled the parties had a burden of proving, on an individualized basis, that any previously-rejected, uncounted absentee ballots were lawfully cast, and thus, should now be counted.

Elias argued that while Franken was certified by the state canvassing board, at the end of the painstaking post-election hand-count, to have received 225 more votes than Coleman, the Coleman team, he said, had presented individualized evidence with respect to no more than nine (9) absentee ballots. Though, in the case of ballots cast by voters who did not appear to be registered, Elias conceded the Secretary of State had indicated, there may be as many as 100 ballots in which missing registration forms might be found inside the absentee ballot secrecy envelopes.

Elias argued that while trial courts ordinarily prefer to defer a ruling on a motion to dismiss until after both sides present their case, the expeditious nature of the proceedings and exigencies warrant an immediate dismissal, even before his team's own case is concluded...

In the Minnesota Independent's coverage of former Sen. Norm Coleman's latest push for a "do-over" election, they also point to our recent coverage of GOP chair Michael Steele's obnoxious and absurd fund raising email to GOP members:

Well, that's a good point, isn't it? With Steele, the Republican Senatorial Campaign Committee, the Republican National Lawyer's Association, and all of their affiliated wingnuts claiming over and over that Franken is "stealing" the election (as we detailed and linked in our report), why aren't the Republicanists calling for criminal charges to be brought against him?

It does seem rather gracious of them to allow Franken to compete in a "do-over" for a U.S. Senate seat which they claim to have evidence of him trying to "steal" in the first place, no?

Are the wingnuts just nice that way? Or are they just full of shit? Hmmm, tough call.

(BTW, with all of those charges by the Republicanists, before the election, of ACORN committing massive "voter fraud," shouldn't Coleman and the Republicanists have brought forward their evidence for that during this important election contest trial, since they seem to have lost by only about 250 votes? Especially in MN, where ACORN helped to register more than 42,000 new voters prior to last year's election? With all of those fraudulent ACORN voters, and with Coleman's team having gone over every single vote cast with a fine-tooth comb, you'd think the GOP could have offered evidence of at least one case of "voter fraud" committed by ACORN in MN, no? Apparently not.)

The "one and only true party of the people" hoping to "rebuild...from the grassroots up," according to an email from its new chairman Michael Steele, seems to be having trouble doing anything differently from the old GOP party. At least if the latest fund raising letter from Steele, charging "liberal Democrat comedian Al Franken" as "stealing Norm Coleman's U.S. Senate seat in Minnesota," is any indication.

On the same day that former Senator Coleman rested his so-far failed case in his election contest in St. Paul against apparent Senator-elect Al Franken, the new GOP chair sent a missive to supporters, begging for money, using the same old failed tactics of the RNC of old; namely, lying to supporters about facts, offering specious, unsupported allegations of Democrats "stealing" elections (despite all evidence to the contrary), making liberal use of the word "liberal," and referring to Democratic party members as "Democrat" party members.

Steele's shameless email (posted in full at the end of this article) echoes the RNC's so-far failed conspiracy-theory strategy to "win" the Senate seat, as previously used by the Coleman camp, the Republican Senatorial Campaign Committee (RSCC), the Republican National Lawyer's Association (RNLA), and GOP propagandists from Hannity to Rush to the wingnut blogosphere which dutifully repeat all of their tin-foil hattery, and/or supply it to them in the first place...

On Day 1 of the Coleman/Franken U.S. Senate election contest in Minnesota, the Coleman team was busted doctoring evidence.

Earlier this week, the Coleman camp was busted having withheld notes from Franken's team, and today, the end of Week 5, "all hell just broke loose in the Minnesota courtroom," according to TPM's Eric Kleefeld, when it was revealed that Coleman's team has also been hiding a witness, as revealed by secret email!

"Al Franken's lawyers [caught] Team Coleman in the act of yet more concealing of evidence --- and they've now made a motion to totally strike the Coleman camp's claims about double-counting of ballots, which the Coleman camp has hoped to use to subtract over 100 votes from Franken's lead."

Add to that what attorney Ernest Canning guest blogged here last week, explaining how Coleman's attorneys need to be sanctioned for having moved to un-count 933 ballots they'd previously signed a stipulation for, agreeing they were legitimately added to the total.

Just imagine what this case would look like by now, had Franken --- or any Democrat, anywhere, anytime --- been busted doing any of those things in regard to an election or an election contest.

On the roll, literally, in Phoenix right now, so please see Kleefeld for the details on the amazing fireworks today in the courtroom...

UPDATE 3/3/09: Coleman fined for the incident. Slap on wrist includes stern warning that case could be dismissed if it happens again, according to the Star-Tribune:

Guest Editorial by Ernest A. Canning

I am a California attorney. After 31 years of practice, I find myself in the enviable position of semi-retirement. As my practice winds down, I have had the luxury to follow the Coleman election challenge closely, both reading court filings and watching a good deal of the proceedings. I consider The BRAD BLOG the most extensive and thorough source of the dangers of E-voting. I felt, however, it would be useful to provide a legal analysis of the present state of the Coleman challenge.

Brad Friedman's described the latest effort by team Coleman to challenge absentee ballots it had previously agreed were properly opened and counted, as a "flip-flop,". While accurate, the term does not begin describe the deep legal dilemma now faced by Norm Coleman's attorneys in the U.S. Senate election contest in Minnesota...

Two quick updates to the Coleman/Franken Election Contest/Mini-Series playing out in Minnesota, both via TPM's Eric Kleefeld, since we're on another deadline today...

1) All of a sudden yesterday, the trial began rapidly picking up pace for some reason. A record "nine and a half" officials were "sworn in, direct-examined, cross-examined, re-direct-examined and excused"

2) Coleman may be setting an all-time flip-floppery record, as he has changed positions, yet again, on originally rejected absentee ballots that he agreed should be counted during the post-election hand-count. The counting of those ballots resulted in a 176 net gain for Franken, leading to his final 225 vote lead over Coleman at the end of that hand-count. As Kleefeld, who details the back-story here, describes it: "Coleman was originally against counting them, then for it, then against it, then for it, and now against it, in that order."

While the new position seems nearly insane (both on a legal, and practical level), the method to the madness is becoming clearer and clearer: Coleman, and his top legal hatchet-man/arsonist, "Swiftboat" Ben Ginsberg, are setting up the case for an appeal to higher authorities, to argue that the election was simply too close to call, the results within the "margin of error", beset with "illegally" counted ballots, and otherwise "fatally-flawed", and the election contest trial itself "a legal quagmire". All in hopes of asking somebody, anybody, (SCOTUS please?) for a do-over election.

We discussed that gambit, and its likelihood of success in this previous article. All of Coleman's moves, of late, seem to support that same general legal strategy.

Amusingly and ironically enough, it was Franken who the nutty Republican National Lawyers Association (RNLA) recently described as "desperate". Go figure.