MN Court Adopts Timeline

Last Friday the MN Supreme Court released their schedule for the MN Senate appeals process; the entire order is excerpted below:

ORDER

On Monday, April 20, 2009, appellants Cullen Sheehan and Norm Coleman filed a notice of appeal from the judgment entered by the three-judge panellin Ramsey County District Court in the above-referenced election contest On Tuesday, April 21, 2009, respondent AI Franken filed and served a motion for expedited briefing and proposed a particular briefing schedule; appellants filed a written response and proposed briefing schedule on Wednesday, April 22.

The time for appeal by other parties expired on Thursday, April 23, 2009, and no other appeals have been filed. In accordance with Minn. Stat §§ 209.09, subd. 2, 209.10, subd. 4, and 209.12 (2008), the appeal shall proceed on an expedited basis.

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED THAT:

1. Ramsey County District Court shall certify and file the record on appeal with the Clerk of Appellate Courts as expeditiously as possible, but in no event later than 15 days after the service of the notice of appeal on April 20, 2009.

2. Appellants shall serve and file their brief not later than Thursday, April 30, 2009; respondent shall serve and file his brief not later than Monday, May 11, 2009. Appellants may serve and file a reply brief not later than Friday, May 15, 2009. Briefs and appendices shall comply with the requirements of Minn. R. Civ. App, P. 128.02-.04, 130, 131.03, and 132.01. Briefs must be received by the Clerk of Appellate Courts by the deadlines noted to be timely filed.

3. Service by mail is permissible if a complete copy of the material is also transmitted to opposing counsel bye-mail or facsimile by the deadlines imposed herein. Each party shall notify the Clerk of Appellate Courts and opposing counsel of an e-mail address or facsimile number to which documents may be transmitted.

4. The court will hear argument on this matter commencing at 9:00 a.m., Monday, June 1,2009, in Courtroom 300, Minnesota Judicial Center, 25 Rev. Dr. Martin Luther King, Jr., Boulevard, Saint Paul. Argument will proceed in accordance with the applicable provisions of Minn. R. Civ. App. P. 134.

5. Respondent's motion for expedited briefing is otherwise denied.

Dated: April 24, 2009

Source: Order of Scheduling via MNCourts.gov

The MNSC essentially adopted the Coleman campaign's requested timeline for briefing submissions while delaying the oral arguments for roughly two weeks beyond the final submission deadline. The first document is due this Thursday from the Coleman campaign with the Franken response due two weeks hence on the 11th of May. At that point the Coleman campaign will have 4 days to submit a final reply brief before the proceedings adjourn until June 1st; the day allocated for oral arguments.

Published on April 28th at 3:27 AM CT :: 0 Comments

Coleman Presents Timeline

Yesterday the Franken Campaign presented their pre-litigation timeline, and today the Coleman campaign responded:

Appellants agree this is a time-sensitive case that should be resolved as expeditiously as possible, Appellants respectfully submit, however, that the parties, and the Court, must be given enough time to fully develop and consider the issues on appeal. Accordingly, Appellants respectfully request a slight modification to the briefing schedule proposed by Respondent as follows:

1. Opening brief of Appellants - April 30, 2009;

2. Opposition brief of Respondent - May 11, 2009; and

3. Reply brief - May 15, 2009.

The Court may then schedule oral argument at a time convenient to it.

Dated: April 22, 2009

Source: Appellants' Response to Respondent's Motion for Expedited Schedule via MNCourts.gov [PDF]

The schedule above concludes on May 15th, a Friday, which seems to suggest that oral arguments would begin the following Monday, May 18th. The Coleman timeline is about two weeks longer than Franken's timeline; this discrepancy manifests itself at each stage of the pre-litigation process. It appears as though the Coleman campaign wants 3 more days to file their initial brief, above and beyond the schedule already outlined by the Franken campaign. It's also interesting to note that the Coleman schedule allows about ten days for the Franken response, while the Franken campaign only indicated that they would need five days. The Coleman campaign also increased their reply time by two days beyond Franken's proposition.

It would make sense for the court to grant Coleman the additional time he is requesting for his own case, but to follow the schedule presented by Franken for deadlines that apply to Franken. It doesn't make sense to allocate ten days when they (Franken) said they could do it in five. I think the court will ultimately compromise between the two campaign's requests; thus resulting in an oral argument start date of May 11th.

The Franken campaign also filed a motion with the MN Supreme Court today, although theirs was comparatively meaningless:

David L Lillehaug does hereby move the Court, pursuant to Minn. R Civ. App, P 127 and 143.05, subd. 1, for admission of Marc E. Elias and Kevin J. Hamilton as attorneys pro hac vice to appear before this honorable Court on behalf of Respondent Al Franken in the above-captioned matter, This motion is based upon all files, records and proceedings herein, as well as the attached Affidavits of Marc E. Elias and Kevin J. Hamilton.

This motion is submitted on the papers, and oral argument is expressly waived.

Dated: April 22, 2009

Source: Respondents's Motion to Admit Attorney's Pro Hac Vice via MNCourts.gov [PDF]

Marc Elias and Kevin Hamilton both actively participated in the Election Contest Court; this is simply a procedural motion that will grant these two attorneys the privilege of practicing law before the Minnesota Supreme Court. Marc Elias is registered with the DC Bar, while Kevin Hamilton is registered with the Washington State Bar.

The MN Supreme Court will probably present the official appeal timeline/schedule within the next few days at which point the litigation process begins, again, although slightly different in nature and much shorter.

Update [3:47 AM CT 4/24/2009]: The Supreme Court has granted Franken's request for the admission of two lawyers pro hac vice. This order really isn't a suprise, but I guess it brings the resolution just a little closer:

ORDER

Based upon all the files, records and proceedings herein,

IT IS HEREBY ORDERED that the motion of David L Lillehaug to admit Marc E. Elias and Kevin J. Hamilton, Perkins Coie, LLP, pro hac vice in the above entitled matter be, and the same is, granted.

Dated: April 23, 2009

Source: Order Granting Motion to Admit Attorneys Pro Hac Vice via MNCourts.gov [PDF]

The bulk of the proceedings will occur out of court, through the exchange of filings, and will culminate with oral arguments presented by each campaign in public court. In previous MN Supreme Court cases relating to this election, the oral arguments have been scheduled for a single hour; the court may however allocate more time as they deem necessary. This is not a typical trial format, once the oral arguments conclude, the court will deliberate until a decision is reached. The schedule will effectively dictate the duration of the trial, unfortunately the court has not released their final timeline; but I'm sure its in the works.

Published on April 23rd at 2:46 AM CT :: 0 Comments

Franken in a Hurry

The Coleman campaign filed their motion for appeal yesterday, and today the Franken campaign responded with the following requests:

Cullen Sheehan and Norm Coleman ("Appellants") have appealed the unanimous decision of the three-judge election contest court ("the District Court"), which, after a seven week trial, affirmed the unanimous Minnesota State Canvassing Board certification that Al Franken ("Respondent") received the highest number of votes in the 2008 general election for the office of United States Senator. Because of the overriding public interest in the expeditious handling and resolution of this historic matter, Respondent respectfully moves for an order that:

1. The record of the District Court proceedings be provided to the Court by the close of business tomorrow, Wednesday, April 22, 2008;

2. Briefing be expedited pursuant to the schedule below, so that the case will be ready for argument twelve calendar days following provision of the record, or Monday, May 4, 2008; and

3. A date for oral argument be set such that the case will be argued promptly after briefing is complete.

This motion is made pursuant to Minn. Stat § 209.09, subds. 2 & 4, Minn. R. Civ App. P. 102 and 126, and the Court's inherent authority.

GROUNDS FOR MOTION

Under the United States Constitution, Minnesota is entitled to be represented by two United States Senators, Minnesota has been without its second Senator for more than 100 days, In a trial that lasted seven weeks, Appellants were given every opportunity to make their case to the District Court In its unanimous decision, the District Court declared that Respondent is entitled to the certificate of election. Now, because of the important public policy concern of ensuring that the interests of the citizens of Minnesota are properly represented in Congress, this appeal should be expedited.

...

1. Expedite the Preparation and Filing of the Record.

...

2. Expedite the Briefing Schedule.

...

Accordingly, Respondent suggests the following briefing timeline:

A. Opening brief of Appellants - Monday, April 27, 2009, five calendar days after delivery of the record;

B, Opposition brief of Respondent - Saturday, May 2, 2009, five calendar days after service of the opening brief; and

C. Reply brief - Monday, May 4, 2009, two calendar days after service of the opposition brief.

3. Set an Expedited Date for Oral Argument. Respondent respectfully suggests that the Court schedule oral argument now for a date very shortly after the reply brief is submitted.

More than five full months have elapsed since the November 4, 2008, general election. More than three months have elapsed since the State Canvassing Board declared the election result and the United States Senate convened to address the nation's urgent business. Yet, unlike every other state in the union, Minnesota stands alone with only a single United States Senator to represent its citizens and respond to their concerns. While Appellants had the right to challenge the State Canvassing Board's decision before three judges and now have the right to appeal the District Court's unanimous decision rejecting their claims, Respondent submits that the overriding public interest in resolving this dispute promptly requires that this appeal be expedited.

Dated: April 21, 2009

Source: Respondent's Motion to Expedited Schedule via MNCourts.gov [PDF]

The Franken campaign is seeking to accelerate the litigation proceedings to the greatest extent possible; they cite several Minnesota Statues, which I detailed yesterday, that give precedent to this election contest appeal. It should also be noted that the MN Supreme Court arranges their own schedule in accordance with Rule 102 of the Minnesota Rules of Civil Appellate Procedure.

I am however sure, that the MN Supreme Court will address this appeal in the most efficient manner possible. The Franken campaign is pushing for a May 4th start date, and their request seems reasonable given the circumstances. If I had to bet, I would say that May 4th would be the absolute soonest the oral arguments could start, with May 11th, the following Monday, presenting as another realistic start date.

Published on April 22nd at 1:54 AM CT :: 0 Comments

Coleman Files Appeal

The representation of Norm Coleman has filed paper work with the Minnesota Supreme Court appealing the decision of the Election Contest Court. The filings came in the form of three documents, each of which I will highlight below. The first document is the Notice of Appeal:

TO: Clerk of the Appellate Courts
Minnesota Judicial Center
25 Rev. Dr. Martin Luther King Jr Blvd.
St. Paul, MN 55155

PLEASE TAKE NOTICE that the above-named Contestants appeal to the Supreme Court of the State of Minnesota, pursuant to Minn. Stat. § 209.10 subd. 4, from the final judgment of the contest court entered on the date shown above, declaring Contestee the recipient of the highest number of legally cast votes in the General Election held November 4, 2008, for the purpose of electing a United States Senator for the State of Minnesota, as well as from all orders relating thereto as subsumed therein.

Dated: April 20, 2009

...

Dear Clerk of Appellate Courts:

Enclosed for filing in the above-referenced matter are the following documents:

1. Original and 2 copies of the Notice of Appeal to Supreme Court;

2. Certified copy of the Contest Court's Judgment;

3 Original and 2 copies of the Appellants' Statement of the Case;

4. Affidavit of Service upon Ramsey County; and

5. Affidavit of Service upon opposing counsel.

Also enclosed is our check in the amount of $500 to cover the filing fee.

Source: Notice of Appeal to Supreme Court via MNCourts.gov [PDF]

The second document contains 10 items that more or less summarize the appeal. Some of these items are simply procedural while others contain useful information. Section 5 is by far the most relevant as it directly lists the claims that the Coleman campaign is actually appealing; I've excerpted all of section 5 and the headings of the other 9 sections below:

1. COURT OF CASE ORIGINATION AND NAME OF PRESIDING JUDGE

2. JURISDICTIONAL STATEMENT

3. TYPE OF LITIGATION AND STATUTE AT ISSUE

4. DESCRIPTION OF CLAIMS, DEFENSES, ISSUES LITIGATED AND RESULT BELOW

5. ISSUES PRESENTED ON APPEAL

I. Whether the trial court erred in excluding evidence regarding (a) the disparate application by election officials of the statutory standard governing absentee ballots and (b) the presence of illegal votes in the certified totals from election night?

II. Whether the trial court violated the constitutional protections of equal protection and due process when it declared that Respondent received the highest number of "legally cast votes" where the record demonstrated that, by the trial court's rulings, the number of "illegally cast" ballots counted on election day and during the recount greatly exceeded the margin between the candidates and it cannot be determined for which candidate those illegal votes were counted?

III. Whether the trial court violated the constitutional protections of equal protection and due process when it imposed a strict compliance standard for the rejected absentee ballots rather than applying a substantial compliance standard to reflect those actually applied by election officials (as well as this Court's longstanding policy favoring enfranchisement)?

IV. Whether the trial court erred in declining to order inspections of precincts in which double-counting was alleged to have occurred?

V. Whether the trial court erred in ruling that missing ballots from Minneapolis Precinct 3-1 were properly included in the tally officially cast votes?

6. RELATED APPEALS

7. CONTENTS OF RECORD

8. ORAL ARGUMENT

9. TYPE OF BRIEF

10. NAMES, ADDRESSES, ZIP CODES AND TELEPHONE NUMBERS OF ATTORNEYS FOR APPELLANT AND RESPONDENT

Dated: April 20, 2009

Source: Statement of the Case of Appellants via MNCourts.gov [PDF]

The most interesting point of appeal comes from section 5.2 and seems to highlight Norm Coleman's attempt to invalidate the election, rather than prevail as the top vote-getter. This marks the first time, that I can recall, where the Coleman campaign has sought relief that would not result in him being declared the winner. The other four items in this section do however encompass the potential addition or subtraction of votes, that could result in Coleman taking the lead, albeit it unlikely.

The final document is simply the judgment entered by the ECC last Monday that asserted Franken's victory by 312 votes. I assume, that when filing an appeal, you must file the judgment which you are actually appealing.

Any future court filings will be filed on the MN Supreme Court litigation page; a change from the previous ECC litigation website. I have no idea when the actual litigation process will begin, although, according to MN § 209.10.4, "the appeal from an election contest relating to the office of state senator or representative takes precedence over all other matters before the Supreme Court." MN § 209.10.4 further pertains "to a contest regarding a statewide office" as noted within MN § 209.09; this classification includes the US Senate Election. Although the appeal will have precedence, I would still expect the Franken campaign to push for an expedited schedule.

Update [7:38 PM CT]: I found other relevant law (§ 209.09) that applied to § 209.10.4 and thus establishes the election contest appeal as paramount to MN Supreme Court's duties. I've updated the article to clarify and reflect these changes.

Published on April 20th at 6:10 PM CT :: 1 Comment

All Quiet on the MNSC Appeal Front

A relatively quiet week ensued, after the Election Contest Court's Monday ruling, but a few pertinent if seemingly unrelated events did transpire. I'll cover two events, as reported by the two major Minnesota papers, and present the time frame for Norm Coleman's potential appeal to the MN Supreme Court.

Our first event features a meeting between Norm Coleman and the Minneapolis Star Tribune's Editorial Board. The meeting took place on April 16th, and a small portion of the video has been posted online at the Star Tribune website. The excerpt shows Norm Coleman visibly upset over the Star Tribune's conduct, with regard to the allegations of money laundering, in the days directly preceding the election. I covered the allegations back in November, if you're curious about the back story.

It'll be interesting to see if the Star Tribune alters their reporting procedures in the coming weeks to make amends; even though they already tend to lean right.

Our next story involves another act of vandalism levied against Norm Coleman's house; as reported by the Pioneer Press:

St. Paul police are investigating after eggs were thrown at former U.S. Sen. Norm Coleman's house in the Crocus Hill neighborhood.

It happened about 9:20 p.m. Tuesday, according to a police report that recorded the incident as misdemeanor criminal damage to property.

After eggs had hit the front door of Coleman's home in the 600 block of Osceola Avenue, a resident of the home saw a man who appeared to be in his 20s outside, said Peter Panos, police spokesman. The report didn't say who the resident was or whether Coleman was home, Panos said today.

The resident then saw the man throw a few more eggs, Panos said. The number of eggs thrown wasn't in the report, he said. The egg thrower wasn't caught, Panos said.

Coleman said Wednesday that a young man had bicycled past his home this week and thrown eggs at him.

...

Republican Coleman has said he will appeal this week's court ruling that Democrat Al Franken won last year's U.S. Senate race.

Source: St. Paul Pioneer Press

I don't know if this is particularly important, but it happened, so I'm reporting it. The last line of the excerpt does however provide a perfect segue. Norm Coleman, lost his election contest, and now he has the opportunity to appeal the ECC's ruling; which he has indicated he will do. Let's began by looking at the relevant law proscribing the time frame in which an appeal must occur:

Subd. 4.Appeal.

The judge's decision may be appealed to the Supreme Court no later than ten days after its entry in the case of a general election contest or five days after its entry in the case of a primary contest. The record on appeal must be made, certified, and filed in the Supreme Court within 15 days after service of notice of appeal. The appellant shall file in the district court a bond of $500 for the payment of respondent's costs if appellant fails on appeal. The appeal from an election contest relating to the office of state senator or representative takes precedence over all other matters before the Supreme Court. A copy of the decision must be forwarded to the chief clerk of the house of representatives or the secretary of the senate, as appropriate.

Source: § 209.10, 2008 Minnesota Statutes

We know that Coleman has "ten days" to appeal, but the above article makes no reference to calendar days, business days or whatever; so the question then becomes, when does the tenth day occur? Another Minnesota Statute seems to outline the proper interpretation:

6.01 Computation

In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the court administrator inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule and in Rule 77(c), "legal holiday" includes any holiday defined or designated by statute.

Source: Minnesota Rules of Civil Procedure

The ten day appeal period began on Tuesday, April 14th because the day of the ruling, Monday, "shall not be included." It's not clear whether the judgment was actually legally entered on Monday, as MN Rule 58.01 dictates that order "shall be entered forthwith by the court administrator", which may or may not be the date of filing. There may exist other legal contingencies that could extend the start date for the appeal window. If we assume that the judgment took effect on Monday April 13th, that makes the tenth day Thursday, April 23th as weekends and legal holidays are included because the prescribed time is more than seven days. Therefore, the Notice of Appeal must be filled on or before Thursday, April, 23; unless weather or other extenuating circumstances arise which facilitate the closure of the court offices. In this event, the Notice of Appeal must be filed on the next day the court office is open and this "next day" cannot be a weekend or a legal holiday.

If the judgment was entered on Tuesday, Wednesday becomes the first day, and the final deadline then becomes Friday, April 24th; barring closure due to weather, etc.

I doubt, the Coleman campaign is in a hurry to file their appeal, my guess is at least Wednesday. In the mean time, Franken will still not be seated in the US Senate without an Election Certificate which, according to MN § 204C.40, cannot be issued until after "a court of proper jurisdiction has finally determined the contest." In the case of an appeal, this would be the MN Supreme Court.

If by next Thursday (or Friday), an appeal is not filed by the Coleman campaign, a Minnesota Election Certificate could be legally issued to Al Franken.

Update [9:31 PM CT]: I clarified some of the appeal deadlines and accounted for other contingencies that could alter the window for appeal.

Published on April 19th at 4:31 PM CT :: 0 Comments

Franken Wins, Rules ECC

The 2008 Minnesota Senate Election officially has a winner, at least according to the Election Contest Tribunal. The three judge ECC issued a 68 page order late Monday declaring Franken the winner. The body of the order is excerpted below:

ORDER FOR JUDGMENT

Based on the above findings of fact and conclusions of law, and pursuant to Minn. Stat. § 209.12, the Court DECIDES, DECLARES, AND ADJUDGES that Contestee Al Franken is the party to the contest who received the highest number of votes legally cast in the 2008 United States Senate general election and is therefore entitled to receive the certificate of election.

Accordingly, IT IS ORDERED that:

1. Contestants' Notice of Contest is dismissed with prejudice;

2. Contestee's Counterclaims are dismissed without prejudice as moot;

3. Pursuant to Minn. Stat. § 209.07, subd. 3, costs of the contest must be paid by Contestants, and Contestee and the Court shall prove up the applicable costs by affidavit after all proceedings in this matter are concluded; and

4. For the reasons stated in the Court's Order of March 2, 2009, imposing a sanction on Contestants, Contestee is awarded his reasonable costs and attorneys' fees in connection with Contestants' failure to disclose, such costs and fees to be proved up by affidavit.

5. Any request for relief in these proceedings not specifically granted herein is denied.

There being no just reason for delay,

LET JUDGMENT BE ENTERED ACCORDINGLY

Dated: April 13 2009

Source: Findings of Fact, Conclusions of Law, and Order for Judgment via MNCourts.gov [PDF]

Before the above order, the ECC presented 157 individual findings of fact over 24 pages. Finding #120 addresses the missing ballots in Minneapolis W3-P1 and findings #137 and #138 detail the voters whose ballots were opened and counted on April 7th:

120. Given the evidence presented, the Court finds that 132 ballots from Minneapolis Precinct 3-1 were cast and properly counted on Election Day and were lost at some point after they were counted on Election Day but before the administrative recount.

...

137. The evidence was sufficient to prove that the absentee ballots of the persons identified in Attachment A were legally cast and wrongfully rejected.

138. The following additions shall be made to the vote totals certified by the Board on January 5, 2009: 111 additional votes for Coleman and 198 additional votes for Franken.

Source: Findings of Fact, Conclusions of Law, and Order for Judgment via MNCourts.gov [PDF]

Attachment A contains the names and counties of 351 voters, along with a reference to the exhibit or court document in which they were originally presented. A greater majority of the exhibit reference appear to begin with an "F," meaning that the Franken campaign originally presented that voter's absentee ballot. This is not however a scientific analysis, simply a brief observation. I'll digitize the document later and provide an exact count at a later date.

Follwing the findings of fact, the court then presented two memorandums addressing specific, yet unresolved issues. The first memorandum is entitled "RULE 9/DOUBLE COUNTING MEMORANDUM" and can be characterized from the following excerpts on page 30 and 31 of the order, respectively:

Any argument that Contestants did not realize that Rule 9 might lead to possible "double counting" of ballots has been waived by their conduct and delay in raising this issue. This court emphasized in earlier orders that this is an expedited proceeding. Contestants' unreasonably delayed raising their claim and are now barred from asserting it.

...

This Court received evidence that it is not uncommon for discrepancies to exist between the number of ballots cast in a precinct and the number of voters shown on Election Day rosters. These Election Day discrepancies can be caused by voters failing to sign rosters before voting and election judges failing to mark the acceptance of absentee ballots on the rosters. The Court cannot conclude that double counting occurred simply because the number of votes counted during the recount is greater than the number of voters on the rosters.

Source: Findings of Fact, Conclusions of Law, and Order for Judgment via MNCourts.gov [PDF]

Basically the court acknowledged that discrepancies between the number of physical voters and the number of physical votes existed, but the court was unmoved by the Contestant's [Coleman] attempts to prove that these discrepancies were caused by double counting.

The next memorandum is entitled "EQUAL PROTECTION MEMORANDUM," and as you might guess, deals with Coleman's equal protection claim. The court first summarized Coleman's argument on page 33 and then states, on page 37, that the proper jurisdiction for this argument lies within the US Senate:

I. Introduction

Contestants argue that similarly-situated absentee ballots were treated differently throughout Minnesota's counties and cities, and that this inconsistent treatment implicates the Equal Protection Clauses of the United States and Minnesota Constitutions. The Court reviewed this argument respectfully in light of the mandates of the United States Constitution and the Minnesota Constitution that all persons similarly-situated be treated alike under the law. See U.S. CONST. amend. XIV, § 1; MINN. CONST. Art. 1, § 2.

...

Thus, to the extent Contestants' equal protection argument alleges "deliberate, serious, and material violation[s]" of Minnesota's election laws, this Court lacks jurisdiction to make findings or conclusions on these points and the matter is preserved for the United States Senate. See Minn. Stat. § 209.12 ("Evidence ... including ... the question of the right of any person to nomination or office on the ground of deliberate, serious, and material violation of the provisions of the Minnesota Election Law, must be taken and preserved by the judge trying the contest. .. ."); U.S. CONST. Art. 1, § 5, Cl. 1 ("Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members."); see also Odegard v. Olson, 119 N.W.2d 717, 719 (Minn. 1963). The Minnesota Supreme Court recently addressed this issue directly and ruled as follows:

When the election contest concerns a congressional office, the only question to be decided is which candidate received the highest number of votes legally cast at the election. Minn. Stat. § 209.12 (2008). Nevertheless, evidence on any other issues specified in the notice of election contest is to be preserved and forwarded to the presiding officer of the Senate or House of Representatives of the United States, as the case may be. Id.

Coleman v. Ritchie, 762 N.W.2d 218, 226 (Minn. 2009).

Source: Findings of Fact, Conclusions of Law, and Order for Judgment via MNCourts.gov [PDF]

The equal protection memorandum continues until page 56 and addresses many of Coleman's additional claim's by essentially stating that the 2008 Minnesota Senate Election administration was conducted in accordance with the US Constitution and the Minnesota Constitution. The ECC concluded their order by stating the following:

The citizens of Minnesota should be proud of their election system. Minnesota has one of the highest voter-participation rates in the country. The Office of the Minnesota Secretary of State and election officials throughout Minnesota's counties and cities are well-trained, fair, and conscientious and performed their duties admirably. Minnesota could not conduct elections without the hard work and diligence of its dedicated professionals and citizen volunteers, and the Court is proud of their service.

Source: Findings of Fact, Conclusions of Law, and Order for Judgment via MNCourts.gov[PDF]

All that remains is for Gov. Tim Pawlenty (R) and SOS Mark Ritchie (D) to sign the Election Certificate as directed, although not legally obligated, by the above order. Coleman has 10 days to file an appeal to the MN Supreme Court, but the ECC states that the US Senate has the ultimate jurisdiction.

Al Franken officially received more votes than any other candidate, but his path to the US Senate may still be lined with political obstacles. The Coleman campaign has already acknowledged their intent to appeal, and there are rumors that Tim Pawlenty may not sign the certificate until the appeals process has ended. In any case, Al Franken received the most votes, by 312, for US Senate in the State of Minnesota on November 4th, 2008.

Update [3:08 AM CT]: I went ahead and parsed through Attachment A [CSV] and the results were mildly surprising:

Record          # Ballots
Coleman:          110
Franken:          193 (194)
Nauen:             36  (37)
Contestee's SJ:    10
Testimony:          1

Total:            351

The parentheses denote a voter who was listed within both a Franken Exhibit and a Nauen Summary Judgment order.

More than half of the 351 absentee ballots contained within Attachment A originated from evidence presented by the Franken Campaign. It's interesting to note that the number of ballots accepted from each campaign almost identically replicates the final result of the 351 ballots; the final allocation was Coleman 111, Franken 198 and 42 to Other. The most interesting inclusion does however come from a Coleman presented witness.

If you recall from the litigation proceedings, Robert Peter DeMuth filled out his voter registration form with the aid of a computer by digitally signing his absentee ballot request form. Mr. DeMuth's ballot was included in the ECC certified result as the ECC only required that the voter sign the physical envelope; which Mr. DeMuth apparently did.

Published on April 13rd at 7:01 PM CT :: 7 Comments

The Counting Aftermath

On Tuesday, April 7th, the MN Senate Election Contest Court sat down at 9:30 AM CT with 387 absentee ballots and began the tedious process of opening, sorting and counting their contents. The counting process did not began for some time, but when it did, the court had identified 351 ballots which merited inclusion into the vote tally. The ECC court released the following order detailing the specific voters contained within the 351 identified ballots:

This matter comes before the Court after its review of certain original absentee ballot materials pursuant to this Court's Order for Delivery of Ballots to Office of the Minnesota Secretary of State for Review by the Court. After review, IT IS HEREBY ORDERED:

1. The absentee ballots in the attached Exhibit A shall be opened and counted in accordance with Paragraph 4 of the Court's Order for Delivery of Ballots to Office of the Minnesota Secretary of State for Review by the Court.

2. Any other relief not fully set forth herein is expressly denied.

Dated: April 7, 2009

[Exhibit A: List of 351 Voter's Names and County, CSV]

Source: Order for Opening and Counting of Ballots via MNCourts.gov

Parsing through the list revealed that 41 of the 42 Nauen Petitioner's identified within the ECC's request were also listed within the ECC's order for opening and counting. Each of the 41 voter's is assumed to have voted for Franken because the Franken campaign was funding their intervention. This leaves 310 voters with unknown allegiances; 10 of the 12 voter's identified within Contestee's [Franken] Partial Summary Judgment are also listed within this 310 vote subset.

I updated my extrapolation to account for the 41 Nauen Petitioner's and the remaining 310 voters; I assume that the Nauen voters will break for Franken in a 90-5-5 fashion and that the 10 Partial Summary Judgement voters have no inclination to vote for one candidate or another:

Extrapolations: ECC Accepts 351 Additional Absentee Ballots [PDF, 141KB]

                      Identified       Extrapolation
                        Voters      Coleman      Franken
ECC Ordered Opened        310        130.66       129.33
    Coleman Regions       190         91.85        66.61
    Franken Regions       120         38.82        62.72

Nauen Petitioners          41          2.05        36.90
    Newly Orded             6           .30         5.40
    Previously Ordered     35          1.75        31.50

Extrapolation Total       351        132.71       166.23

Actual Result             351          111          198

The Pioneer Press and the Star Tribune have both reported that the final resolution of these 351 ballots resulted in Franken increasing his lead by 87 votes from 225, to 312.

At this point it seems unlikely that further ballots will be opened and counted, but the possibility does remain. The ECC also has yet to address the 133 (or 134) lost ballots in Minneapolis W3-P1 and any remedy to the Coleman campaign's argument of double counted ballots. It seems unlikely that a ruling will be released today, as the ECC just released an order clarifying the resolution of the Nauen Petitioners:

This action came on for a court trial before the Honorable Elizabeth A. Hayden, the Honorable Kurt J. Marben, and the Honorable Denise D. Reilly, District Court Judges, beginning on January 26, 2009 and ending on March 13, 2009.

Having considered the testimony and evidence adduced at trial, the exhibits admitted into evidence, the pleadings,' briefs and memoranda submitted by all the parties, and the arguments of counsel, the Court now makes the following:

ORDER

1. Petitioners filed a Petition pursuant to Minnesota Statute section 204B.44 with the Minnesota Supreme Court on January 13, 2009. On January 16, 2009, the Minnesota Supreme Court issued an order granting Norm Coleman's motion to intervene in Petitioners' proceeding and further directing the Petition to this Court for consideration and decision within the current election contest.

2. Pursuant to the Court's Order Granting in Part and Denying in Part Petitioners' Motion for Summary Judgment (Feb. 10, 2009), Nunc Pro Tunc Order Correcting Order Granting in Part and Denying in Part Petitioners' Motion for Summary Judgment (Feb. 10, 2009). Order on Intervenor's Rule 60.02 Motion 10 Vacate Judgment (Mar. 2, 2009), Order Granting in Part and Denying in Part Petitioners' Renewed Motion for Summary Judgment (Mar. 11, 2009), and Order Granting Petitioners' Second Renewed Motion for Summary Judgment and Amending Order Granting in Part and Denying in Part Petitioners' Renewed Motion for Summary Judgment Dated March 11, 2009 (Mar. 31, 2009), the Court granted summary judgment with respect to the following Petitioners:

3. On March 31, 2009, the Court Issued an Order for Delivery of Ballots to.Office of the Minnesota Secretary of State for Review by the Court. The Petitioners listed above were identified in the Court's March 31, 2009 Order.

[List of 36 Voter's Names and County, CSV]

4. On-April 7, 2009, the Court ordered the absentee ballot return envelopes of voters identified in an attached exhibit to be opened and counted by the Office of the Secretary of State in open court and the totals included in the results of the 2008 United States Senate election reported by the Minnesota Secretary of State. With one exception, the ballots of the individuals listed above were opened, sorted and counted by the Office of the Secretary of State in open court on April 7, 2009, pursuant to the Court's March 31, 2009 and April 7, 2009 Orders.1

5. With respect to the Petitioners not expressly identified herein, the Court has not been presented with sufficient individualized evidence in support of Petitioners' claims. The Petition with respect to those individuals is accordingly DISMISSED.

6. Any request for relief in these proceedings not specifically granted herein is denied.

There being no just reason for delay.

LET JUDGMENT BE ENTERED ACCORDINGLY.

Dated: April 10, 2009

1The absentee ballot return envelope of Roxanna Saad of Dakota County was not opened and counted on April 7, 2009, after the Court determined Ms. Saad failed to fully complete a voter registration application.

Source: Order Regarding Resolution of Petitioner's Motion via MNCourts.gov

The above order details the 36 petitioner's listed within previous orders granting the opening and counting of their ballots, a number I arrived at on Monday. The final count, as noted above, included 35 of the 36 plus 6 other petitioners who had not previously been granted relief. This brings the grand total of relieved Nauen Petitioners to 41. I've updated my Nauen voter table to reflect the result of the counting procedure; the contents of this most recent order did not reveal any new information. It simply outlined the result of the Nauen Petitioner's and dismissed the remaining petitioner's request for relief:

Extrapolation: Nauen Petitioners and ECC Ordered Opened & Counted Aftermath [PDF, 125KB]

Despite the ECC's detailed and straightforward resolution of the Nauen Petioners, Rachel E. Stassen-Berger of the St. Paul Pioneer Press still managed to a provide inaccurate information:

The order the court did issue today dismissed the case of the voters who sued on their own but haven't had their ballots counted.

Sixty-one voters sued early this year to have their absentee ballot votes counted. That suit, which was funded by Franken, was folded into Coleman's larger suit.

Thirty-six of those voters had their ballots opened and counted on Tuesday, along with 315 other absentee ballots. The results on those ballots boosted Franken's lead to 312 votes.

Today, the judges said that the case of the other 25 votes was dismissed.

[emphasis added to depict inaccuracies]

Source: St. Paul Pioneer Press

Rachel's entire article contained just 217 words, but three glaring inaccuracies:

1. There were 64 Nauen petitioners, not "sixty-one;" although three voters did eventually withdraw their claim.
Exhibit A: List of 64 Voters by Name and County, [CSV, 2KB]
Source: Petition by Certain MN Voters to Have Their Votes Counted via MNCourts.gov

2. Forty-one of the Nauen petitioners eventually had their vote counted; the "thirty-six" Rachel presents originates from today's order and tells me that she cannot read footnotes. Thirty-six voters were originally presented, but Roxanna Saad's ballot was never counted because it did not contain a completed voter registration form.

3. The "25" other votes should actually read 23, but its hard to get this number right, when the two previous numbers were completely wrong; 64-41=23.

The ECC will probably present their ruling some time next week, at that point, the loser will have 10 days to present an appeal to the MN Supreme Court.

Published on April 10th at 6:31 PM CT :: 1 Comment

The Counting Begins

Before the court even begins counting tomorrow morning, thirteen ballots will be eliminated from their original request of 400. The Star Tribune is reporting, by way of the Deputy Secretary of State, that 13 of the 400 ballots have already been counted and were erroneously requested due to clerical errors. The relevant portion of the Star Tribune article is excerpted below:

Deputy Secretary of State Jim Gelbmann said Monday that 13 of the 400 ballots on the judges' list had already been counted, on Election Day or during the recount, putting the number of ballots that might be added at 387.

Once opened, outside envelopes -- which contain voters' names -- will be separated from the security envelopes that contain the original ballots, said Secretary of State Mark Ritchie. Poser will then sort the ballots into three piles -- Franken, Coleman and other.

Source: Minneapolis Star Tribune

This reduction of the potential pool of additional, countable absentee ballots will likely facilitate an MN Supreme Court appeal by Norm Coleman as the number of physical ballots quickly approaches his current deficit. Once the ballots are counted, hopefully by the end of tomorrow, the court still has other issues to confront before they present their ruling. Once the ECC determines the victor, the loser will have 10 days to appeal to the MN Supreme Court.

In other related news, the Franken campaigns has asked the court to allow another attorney, Lisa Marshall Manheim from Seattle, WA to practice before the court:

Contestee Al Franken hereby moves for permission for Lisa Marshall Manheim, attorney with Perkins Coie 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 Lisa Marshal Manheim, and the files and proceedings herein.

Dated: April 6, 2009

Source: Contestees Motion for Admission Pro Hac Vice of Lisa Marshall Manheim via MNCourts.gov

I really have no idea why the Franken campaign is seeking further representation but a quick Google search revealed a little background information about Mrs. Manheim. She apparently represented the Democratic candidate, Chris Gregoire, during the 2004 Washington Gubernatorial Recount; Gregoire eventually won. Perhaps the Franken campaign is already gearing up for the appeals process; although a separate request would have to be filled with the MN Supreme Court, the relevant court during a subsequent appeal.

Other than those two bits of information, I have nothing else to report until the counting begins tomorrow at 9:30 AM CT. Check theuptake.org for a live stream tomorrow morning. Hopefully the court releases some hard numbers tomorrow, but if they don't I'm sure a few shoddy numbers will trickle in from the Minnesota Media; in any case I'll try to recap the count tomorrow night, assuming relevant data exists.

Published on April 7th at 4:14 AM CT :: 0 Comments

Clarifying the 400 Requested Ballots

I wrote an article last Thursday in which I attempted to quantify the Election Contest Court's Tuesday request for 400 currently rejected absentee ballots. While my previous analysis was not technically incorrect, it was however a misrepresentation of the current state of affairs; I entirely neglected to account for the Nauen group of petitioners.

I'll first present the corrected extrapolation:

Extrapolations: ECC Requests by City [Nauen] [PDF, 128KB]

                      Identified       Extrapolation
                        Voters      Coleman      Franken
ECC Request               358        150.24       149.86
    Coleman Regions       219        106.02        76.30
    Franken Regions       139         44.24        73.56

Nauen Petitioners          42          2.10        37.80
    Only Orig. 64           6           .30         5.40
    Ordered Counted        36          1.80        32.40

Total                     400        152.35       187.66

You'll notice that the new version greatly increases Franken's projected gain; up to about 35 from around 1.5 previously. This vast increase can be directly attributed to the assumption that any voter listed within the Nauen group is inherently more likely to vote for Franken as the Franken campaign is providing the financial support; Mr. Nauen also appears to be a Democrat based upon his contributions. The extrapolation uses a 90-5-5 split, in favor of Franken.

Coleman needs to make up 225 votes, and the numbers simply do not add up; either in the extrapolation above or the trinomial distribution below:

ECC Requested 400 Ballots Probability

The very small number above, is the probability of Norm Coleman overcoming the Canvassing Board Certified 225 vote deficit within the 400 ballots requested by the ECC; the calculation uses the statewide result as certified by the MN State Canvassing Board on January 5th.

The numbers of the current situation are hopefully well understood but let's take a look at the sequence of events relating to the Nauen Petitioners to better understand the current circumstances. The pertinent excerpts of the original Nauen petition, as presented on January 13th, is quoted below; this filling listed each of the 64 voters by name and county within Exhibit A:

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: January 13, 2008

...

Exhibit A

[List of 64 Voters by Name and County, CSV]

Source: Petition by Certain MN Voters to have their Votes Counted Pursuant to Mn.Stat.204B.44 via MNCourts.gov

Within the first filling, the 64 petitioners basically asked to have their votes counted. The ECC would eventually grant 23 of these individuals their request; a 24th also met the court's criteria barring the presence of a completed voter registration application. The February 10th order pertaining to these 23 (or 24) is presented below along with the digitized table containing their names and associated county:

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 Voters by Name and County, CSV]

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.

Dated: February 10 2009

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

I wrote a previous article addressing the above order that may provide additional insight.

The Coleman campaign then moved to vacate the previous order by specifically addressing eight of the just mentioned voters. The ECC met Coleman about half way and vacated three of the previously granted 24 petitioners. This order was released on March 2nd, but was never posted to the Litigation Website, but The Ohio State University pulled through:

This matter comes before the Court on "Contestants' Notice of Motion and Rule 60.02 Motion to Vacate 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. Intervenor's Rule 60.02 Motion to Vacate Judgment is granted in part and denied in part.

2. That Portion of the Court's February 10th Order granting summary judgment to Petitioners Hannah Gorski, Donna Mortenson and Audrey Verlo is vacated.

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

4. Any other relief not fully set forth herein is expressly denied.

Dated: 3/2/09

Source: Order on Intervenor's Rule 60.02 Motion to Vacate Judgment via MoritzLaw.OSU.edu

The remaining forty or so voters still had the opportunity to provide additional evidence to support their original motion; nineteen voters then renewed their previous motion on February 20th. The court would release the following order with respect to this renewed:

The above-entitled matter came on for hearing before the Court on February 27, 2009, upon Petitioners' Renewed 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. Petitioners' Renewed Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART.

2. The following absentee ballots shall he 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 14 Voters by Name and County, CSV]

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

4. The attached Memorandum is incorporated herein by reference.

Dated this 11th day of March 2009.

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

Fourteen of the nineteen petitioners were granted their requested relief as their ballots were ordered to be opened and counted, eventually. Three of the neglected five voters then tried again by further requesting that the ECC count their vote. This motion was filled on March 31st and is excerpted below:

This matter comes before the Court on Petitioners' Second Renewed 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' Second Renewed Motion for Summary Judgment is granted in full.

2. That portion of the Court's March 11th Order granting summary judgment to Petitioners Donald and Donelda Applebee is vacated.

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

4. Any other relief not fully set forth herein is expressly denied.

Dated: March 31, 2009

...

II. Petitioners' Renewed Motion for Summary Judgment is Granted

In their second renewed motion for summary judgment, Petitioners seek summary judgment on claims brought by four voters: Katie Kaszysnki, Roxanna Saad, Kourteney Dropps, and Tempest Moore. In addition to the evidence presented by Petitioners in support of their motion for summary judgment, the Court in the election contest received evidence as to each of these voters. As in prior orders, the Court looks at the individualized evidence in support of Petitioners' claims that their ballots were properly cast and rejected in error in the November 4, 2008 election. The Court examines each of the identified Petitioners in tum.

Source: Order Granting Petitioners Second Renewed Motion for Summary Judgment via MNCourts.gov

The three petitioners who were the subject of the second renewed motion were granted their relief, but two other, already relieved voters were not so fortunate. These two voters will not have their ballot examined for potential inclusion; there was apparently a clerical error that lead to their inclusion in one of the previous orders. This brings the total number of relieved Nauen petitioners to 35 (or 36). I've provided a recap of the Nauen orders below that accompanies a much more detailed spreadsheet:

Extrapolations: Nauen Petitioners and ECC Ordered Opened & Counted [PDF, 125KB]

Date         Type     Party          Result      Total Votes
Jan 21      Motion    Nauen      64 Petitioners       0
Feb 10       Order    Nauen       Count 23 (24)     23 (24)
Mar  2       Order   Coleman        Vacate 3        20 (21)
Mar 11       Order    Nauen         Count 14        34 (35)
Mar 31       Order    Nauen        Count 3 (4)      37 (38)
                                    Vacate 2        35 (36)

While the Nauen group accounts for the vast majority of previously relieved voters, their was one other group, brought forth by the Contestee, Al Franken. The following order by the ECC takes us back to February 23rd addresses twelve voters listed within Franken's original counterclaim:

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.

[List of 12 Voters by Name and County, CSV]

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.

Dated: February 23, 2009

Source: Order Granting in Part and Denying in Part Contestees Conditional Motions for Partial Summary Judgment via MNCourts.gov

These twelve voters votes will eventually be counted bringing the total number of previously relieved voters 47 (or 48):

Date         Type     Party          Result      Total Votes
Feb 23       Order   Franken        Count 12        47 (48)

Each of the 47 (or 48) are included within the list of 400 requested by the ECC on March 31st. The 400 are supposed to be provided to the court by Monday, April 6th at noon so the process of opening and counting each ballot can begin tomorrow (Tuesday) morning at 9:30 AM CT. At that point, the counting will begin with respect to Minnesota law; that is, because a ballot is instructed to be opened, it may not be counted. Overvoting and undervoting may have occurred, or the voter may have improperly marked their ballot; a multitude of issues could prevent a physical ballot from being counted above and beyond that which has already been determined by the ECC; simply that the absentee ballot was legally cast.

The physical counting of these 400 ballots will take place in the same courtroom and may or may not be open to the public, due to privacy concerns; but in either case we should know the result Tuesday evening. If the process is public, theuptake.org will probably provide a live stream.

Published on April 6th at 9:18 AM CT :: 2 Comments

ECC Requests Delivery of 400 Ballots

After deliberating for about three weeks, the Election Contest Court broke their silence by releasing two orders, with more likely to follow. The first order governs the court's request for the delivery of exactly 400 absentee ballots, that have yet to be counted, to the Secretary of State's office for further review. The full text of the order is excerpted below; the memorandum follows within the provided PDF:

ORDER

1. The following materials shall be provided to the Office of the Minnesota Secretary of State no later than 12:00 noon on April 6, 2009 for review by the Court:

a. The absentee ballot return envelopes for the individuals identified in Exhibit A;

b. The absentee ballot return envelopes, absentee ballot applications, and federal postcard applications for the individuals identified in Exhibit B; and

c. The original voter registration application and absentee ballot return envelope for the individual identified in Exhibit C.

2. Absentee ballots determined by the Court to be legally cast shall be opened and counted on April 7, 2009 at 9:30 a.m. in Courtroom 300 of the Minnesota Judicial Center 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.

3. A copy of this Order shall be furnished to each of the County Auditors, who shall be responsible for locating the ballots identified herein. All such ballots shall be transmitted to the Secretary of State pursuant to the directions in Exhibit D.

4. Legally cast absentee ballots shall be opened, sorted and counted by the Office of the Secretary of State in open court. Opening, sorting and counting shall proceed using the same methods as described in the Minnesota Supreme Court's Order of December 24, 2008. Upon opening, sorting and counting, the ballots shall be completely and finally separated from the envelopes in accordance with Minnesota's policy of ballot secrecy. The totals from the opening, sorting and counting shall be included in the results of the 2008 United States Senate election reported by the Minnesota Secretary of State.

5. The Court's Memorandum, attached herewith, is incorporated herein.

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

Source: Order for Delivery of Ballots to Office of the Minnesota Secretary of State for Review by the Court via MNCourts.gov

The three previously referenced exhibits contain the 400 voters whose ballots have been deemed worthy of future consideration for inclusion by the Election Contest Court. I have digitized the contents of these three exhibits below:

Exhibit A: 393 Voters, [CSV, 14KB]
Exhibit B: 6 Voters, [CSV, 1KB]
Exhibit C: 1 Voter, [CSV, 1KB]

Now, using the data provided above, an extrapolation can be preformed to determine the probable outcome of these 400 ballots. The most interesting case assumes complete inclusion, although other scenarios are provided:

Extrapolations: ECC Requests by City [PDF, 127KB]

                      Identified       Extrapolation
                        Voters      Coleman      Franken
Total                     400        166.95       168.42
    Coleman Regions       242        116.60        84.95
    Franken Regions       158        50.35         83.47

If each and everyone of these 400 ballots is analyzed and eventually counted, Franken's lead will increase by about 1.47 votes based upon a linear extrapolation of the recounted vote totals within each voter's county/precinct/city; Franken already leads by 225 votes as certified by the Minnesota State Canvassing Board on January 5th. Despite the favorable extrapolation for the Franken campaign, it remains impossible to predict the outcome of these 400 ballots; but we do know the destiny of four ballots.

The second order released by the ECC on Tuesday dealt with four petitioner's motion for summary judgment; the court's orders are presented below:

This matter comes before the Court on Petitioners' Second Renewed 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' Second Renewed Motion for Summary Judgment is granted in full.

2. That portion of the Court's March 11th Order granting summary judgment to Petitioners Donald and Donelda Applebee is vacated.

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

4. Any other relief not fully set forth herein is expressly denied.

Dated: March 31, 2009

Source: Order Granting Peitioners Second Renewed Motion for Summary Judgment via MNCourts.gov

The court granted four voters their requested summary judgment meaning their votes will be opened and counted by the ECC. It should also be noted that the four petitioner's names can be found within one of the three aforementioned exhibits. The order also vacated or undid a previous order granting the inclusion of two other voters' ballots. At the end of the day, at least four more ballots will be opened and counted, with the possibility of 396 still in the balance.

We may also learn more about the court's view on double counting in the interim as the requested absentee ballots trickle into the Secretary of State's Office before the April 7th deadline. If the counting of some or all of the 400 requests does not materially change the situation, the court will still address all other counting issues for the sake of thoroughness, in the event of an appeal to the MN Supreme Court by either campaign.

Update [6:07 AM CT] I've recomputed the above extrapolation to reflect the Nauen petitioners; I'll have a more complete synopsis later today or tomorrow. The new data implies that Franken will increase his lead by about 35 votes.

Updated Extrapolation: ECC Requests by City [Nauen] [PDF, 137KB]

Update II [6:20 AM CT 4/5/09 ] I found a series of errors within the original extrapolations; I've since updated the entire article to reflect these corrections, including links to the updated PDFs. I'll hopefully have time tomorrow to get write the article I intended to write today regarding the universe of absentee ballots which are to be counted.

Published on April 2nd at 4:48 PM CT :: 1 Comment

Indiana Antics

Before the two most recent polls were released in Indiana (Downs Center [4/16], LA Times/Bloomberg [4/14]) Clinton had a comfortable lead of 9.25 percent, on average. A significant shift occurred with the release of these two new polls each showing Obama positioned with a 5 percent advantage; a swing of nearly 15 percent in the span of just a week. How did Hillary manage to squander 15 percent in this crucial state? To answer this question the actions of each candidate during the previous week must be analyzed. In the prior week Barack Obama continued his campaign in Pennsylvania and at one point referred to voters as "bitter" in the face of economic hardship. He also stated that these same "bitter" voters have given up on voting for real issues but rather focus their attention on "guns and religion." At the same time Hillary Clinton toured Indiana seeking to appeal to whiskey drinkers and firearm fanatics while touting herself as the "in touch" candidate countering what the media described as Barack's "bitter" blunder. But the poll numbers don't lie and clearly illustrate that Clinton's rhetoric completely failed.

But perhaps Obama's rise in poll numbers can be attributed to something entirely different. Perhaps people actually do feel "bitter" when they lose their job for bureaucratic reasons. Perhaps his poll numbers increased among those who are in fact "bitter". Perhaps Clinton is out of touch with the real issues. Perhaps she realizes she cannot win on the issues and is instead seeking to appeal to the same demographic for which she derided Obama for referencing; the "guns and religion" vote. Perhaps all of these ifs are true, does Obama then have the nomination wrapped up? The polls appear to be paving the way in either case.

The Indiana primary takes place on May 6th, the same day as North Carolina and fourteen days after Pennsylvania. Indiana has 72 national pledged delegates.

Published on April 18th at 7:08 PM CT :: 0 Comments

Dem. Algorithm Update

The democratic nomination algorithm has been adjusted for the case where there is no poll data available within the last 8 days. Under the new rules the system will select the most recent poll for that state (regardless of age) and average it with the current national average. This change allows for unique results in each race that still reflects the will of the people while adjusting for the recent trends in public sentiment.

Published on April 15th at 6:08 PM CT :: 0 Comments

Preliminary Polling Algorithm

The current algorithm for the Democratic Nomination gathers all relevant polling data for the given race within the last 8 days. If there is no data available within the last 8 days, the national race is substituted in place of the selected race. The results of this query are averaged and extrapolated out to 100%; this means that if the poll shows that Candidate A has 47% and Candidate B has 40% the new results will show Candidate A receiving (47%)/(47% + 40%) = 54.02 percent and Candidate B receiving (40%)/(47% + 40%) = 45.98%. Next the percentage of each candidate is multiplied by the number of delegates in each race and the result shows the projected number of delegates each candidate will receive for a given race.

The algorithm for the General Election (not yet implemented) is slightly different. The system again gathers all relevant poll data for the given state within the last 15 days, but if there is no data available the result of the 2004 election are used in its place. The percentages are calculated in the same manner as the Democratic Nomination. Once these percentages are calculated the candidate with the highest percentage gets all the electoral votes for that state.

Published on April 10th at 8:56 PM CT :: 0 Comments

Electoral College Projection Map
Senate Projection Map