Appellant, Respondent & Reply Briefs

The Coleman campaign filled their brief with the Minnesota Supreme Court on April 30th, the last possible day for submission. An overview of the 62 page document is excerpted below:


1) 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 vote totals?

Trial Court's Ruling: Such evidence was irrelevant to whether the ballots before it were legally cast.

Apposite Authorities: Minn. Stat. § 209.12; U.S. Const. amend. XIV.

2) Whether the trial court violated the constitutional protections of equal protection and due process when it declared Respondent received the highest number of "legally cast votes" where the record demonstrated the number of "illegally cast" ballots, under the court's own definition, that were counted on election day and during the recount greatly exceeded the margin between the candidates?

Trial Court's Ruling: Already-counted absentee ballots, even if illegal under the court's own definition, were properly included in the tally because Minnesota law does not provide any remedy for retracting such ballots from vote totals and the Fourteenth Amendment does not require that similar ballots in the same election be treated the same.

Apposite Authorities: Minn. Stat. § 209.12; Hanson v. Emanuel, 297 N.W. 749 (Minn. 1941); Berg v. Veit, 162 N.W. 522 (Minn. 1917); Roe v. State of Alabama, 43 F.3d 574, 581 (lith Cir. 1995); Griffin v. Burns, 570 F.2d 1065, 1078 (lst Cir. 1978); U.S. Const. amend. XIV.

3) Whether the trial court violated the constitutional protections of equal protection and due process when it imposed a strict compliance standard for rejected absentee ballots rather than a substantial compliance standard like that actually applied by election officials (and in accord with this Court's longstanding policy favoring enfranchisement)?

Trial Court's Ruling: Rejected absentee ballots that do not strictly comply with the statutory requirements may not be included as "legally cast" ballots regardless of whether election officials also followed a strict compliance standard.

Apposite Authorities: Fitzgerald v. Morlock, 120 N.W.2d 339, 345-47 (Minn. 1963); Andersen v. Rolvaag, 119 N.W.2d 1,10 (Minn. 1962); In re Contest of School District Election, 431 N.W.2d 911,915 (Minn. Ct. App. 1988); Minn. Stat. § 203B.12; Erlandson v. Kiffmeyer, 659 N.W.2d 724, 729 (Minn. 2003); Bush v. Gore, 531 U.S. 98 (2000); U.S. Const. amend XIV.

4) Whether the trial court erred in declining to order inspections of precincts in which double-counting may have occurred during the recount?

Trial Court's Ruling: Inspections were not required and unnecessary.

Apposite Authorities: Minn. Stat. § 209.06.

5) Whether the trial court erred in ruling missing ballots from a Minneapolis precinct were properly included in the final recount tally?

Trial Court's Ruling: The court gave deference to the canvassing board's determination that election night totals from that precinct be included in the tally.

Apposite Authorities: Newton v. Newell, 6 N.W. 346 (Minn. 1880).

Dated: April 30, 2009

Source: Appellant's Brief [PDF]

Coleman's initial brief "contains 13,751 words" across five sections and focuses on the five points outlined above; the document was also written in "13-point Times New Roman format," as detailed within the Certificate of Compliance at the end of the brief.

I'll now provide a brief analysis of each of the five main points:

1. The basis of this argument is that if different ballots were subjective to different standards, all ballots were treated differently. Coleman argues that had the court allowed additional evidence, a more accurate definition of a legally cast vote would have been ascertained. The Coleman campaign did not however provide any specific evidence, in this brief, to illustrate that the correlation between inconsistent standards caused any discrepancy in the final vote count. The ECC excluded this evidence because the Coleman campaign did not show that specific ballots were miscounted.

2. The "Coleman [campaign] ultimately compiled that evidence in written offers of...more than 425 illegally cast absentee ballots counted on election day. See, e.g., A.570-591; A.709-919." This number of 425 is larger than the current margin of 312, but election history and apportionment would indicate that a much larger number of illegally cast and counted votes would be required to alter the outcome; especially given the apparent randomness of the illegally counted ballots proposed by Coleman.

3. Each and every ballot that was counted by an election official, using any standard, could have been presented to the ECC for review by the Coleman campaign. The very purpose of the ECC is to act as the final arbiter for any contention raised by any participating party; their jurisdiction implies the existence of a uniform standard. If a ballot is presented to the ECC it receives uniform treatment under the strict compliance standard; if a given ballot is not alleged to contain errors, it is assumed to have been properly counted by the local election official under the strict compliance standard as dictated under MN Law. If a uniform standard was not applied by the local election officials, it was the responsibility of the Coleman campaign to flag the error for correction by the ECC; a mechanism which satisfies equal protection.

4. The Coleman campaign never presented any compelling evidence to suggest that double counting occurred. They presented a fairly limited number of precincts exhibiting overcounts (more votes than voters) and attempted to imply that double counting only occurred to the detriment of candidate Coleman; they did not however provide any concrete reasoning to support this claim either through evidence or witness testimony. Their double counting argument might have been more effective had they addressed all [PDF] overcounted precincts. Lets also not forget that the MNSC previously issued a non-binding order, before the ECC, addressing the flimsiness of the double counting evidence presented by the Coleman campaign.

5. The MN State Canvassing Board determined that the Election Night totals from Minneapolis W3-P1 should be used due to missing ballots and the ECC later adopted the Canvassing Board's stance. Without very compelling new evidence, which so far hasn't been presented, the MNSC is not going to overturn the opinion of these two election governing bodies.

The Franken campaign's response on May 11th mirrored the organization of the Coleman's effort and also came on the last day of the designated timeline. The Franken response contains a direct rebuttal of the five previous points, as excerpted below:


1) Whether the trial court acted within its discretion when it excluded cumulative and irrelevant evidence that would not have affected the outcome of the trial.

Trial Court's Ruling: On multiple grounds, the evidence was properly excluded.

Authorities: State v. AmoJ, 6.58 N.W.2d 201,203 (Minn. 2003); Minn. R. Civ. P. 61.

2) Whether the trial court acted within its discretion when it prohibited Appellants from presenting evidence that had never been disclosed in discovery, where the effect was to preclude a claim that was procedurally barred, factually unsupported, and without legal merit.

Trial Court's Ruling: Appellants not only failed to meet their burden of proving that certain accepted absentee ballots affected the outcome of the election; they also waived these claims by failing to comply with discovery obligations.

Authorities: Minn. Twim P'sbip v. Hatch, .592 N.W.2d 847, 850 (Minn. 1999); Hahn v. Graham, 225 N.W.2d 385,386 (Minn. 1975).

3) Whether the trial court was correct to judge the acceptability of absentee ballots under Minnesota statutes and case law, rather than under an invented standard that finds no support in the statutes, the Constitution, or the facts, where the party advocating the alternative, invented standard inadequately raised the claim and presented insufficient proof in support.

Ruling: Appellants' claims fail on multiple grounds, and, in any event, Minnesota law governs the treatment of absentee ballots.

Authorities: Cranford v. Marion County Election Bd., 128 S. Ct. 1610 (2008); Bell v. Gannaway, 227 N.W.2d 797 (Minn. 1975); Minn. Stat. §§ 203B.02 et seq.

4) Whether the trial court acted within its discretion when it determined that Appellants had failed to show a need for certain pretrial inspections.

Trial Court's Ruling: On multiple grounds, Appellants failed to meet their burden.

Authorities: Minn. Stat. § 209.06.

5) Whether the trial court properly refused to overturn the certification by the State Canvassing Board, where the latter had determined, after a hearing and on advice of the Attorney General, that the Election Day returns were the best evidence of the votes in a certain Minneapolis precinct.

Ruling: The Board acted correctly and Appellants presented insufficient evidence to overturn its certification.

Authorities: Moon v. Harris, 142 N.W. 12 (Minn. 1913).

Dated: May 11, 2009

Source: Respondent's Brief [PDF]

The Franken campaign basically took Coleman's argument and added a "no" or a "not" to the beginning and provided the typical supporting legal references. This is by no means unexpected, but it highlights the futility of Coleman's appeal. The Coleman campaign's best case scenario has shifted away from that of winning to that of not-losing; an invalidation seems to be their best case scenario. The Franken campaign is simply attempting to eliminate that possibility.

On an interesting side note, the Franken response "contain[ed] 13,998 words" about 200 more than Coleman's first brief, but the Franken campaign chose to use the "Garamond font," instead of Times New Roman as the Coleman campaign used.

The Coleman campaign responded with their reply brief on May 15th, again the last day of the deadline:


In order to satisfy Minn. Stat. § 209.12 and the constitutional guarantees of equal protection and due process, the Court should vacate the order for judgment and reverse and remand with instructions to count the remaining absentee ballots cast by eligible voters who substantially complied with the directives of Minn. Stat. § 203B.12.

Dated: May 15, 2009

Source: Appellant's Reply Brief [PDF]

Parsing through all the legal pretense reveals the core of Coleman's strategy; to count sum "4,400" absentee ballots that have yet to be counted. Whether Coleman can legally justify the counting is a different matter; he seems to be using the one wrong needs another wrong to make a right approach. Illegal ballots were probably counted, and the only way to counteract the problem is by counting more illegally counted ballots.

My pragmatic solution is take the 4,400 absentee ballots and separate them into piles of lawlessness; then you count the most legal pile, then the next most legal and so on and so forth until it matters, or perhaps it won't. The counting process would have to be done blindly so that only the MNSC would know the result of each pile. If the entire batch of 4,400 is iterated through, degree by degree, and Franken still leads, the legality is moot; grant Coleman's central request and then declare Franken the winner. If the counting of these 4,400 alters the outcome, then the lawyers can fight about whatever their side needs to fight about, but at least we know the legal battle has a purpose.

Coleman is currently down by 312 votes, and I highly doubt he could overcome this deficit within the 4,400 currently rejected and likely illegally cast ballots his campaign seeks to enfranchise. The Coleman campaign's requested remedy may not even matter at this point, but its their best shot and both campaigns know it.

Published on May 27th at 10:59 PM CT :: 0 Comments

Polls Show Edwards as Best VP Choice

A barrage of polls recently released by SurveyUSA depict John Edwards as the best Vice Presidential choice when paired with other theoretical pairings for both Obama and McCain. In the four states that were surveyed (Ohio, Virginia, California, Pennsylvania) the Obama-Edwards ticket shows the greatest amount of support winning by a minimum of 9 points across all VP combinations surveyed.

Outside of the raw numbers I found it curious that a similar poll was not conducted with Hillary in mind, or for that matter that Hillary was not even included as a possible combination with Obama. SurveyUSA apparently determined that Clinton is too far beyond the realm of feasibly winning the nomination to warrant the investment. I also found it interesting that Chuck Hagel (Republican Senator, Nebraska) was included as a potential running mate with Obama. While Hagel is clearly the poorest performing VP choice on the Democratic front, his Republican association only appears to damage the ticket by few points. As a side note these are not states a Hagel selection would likely target.

On the Republican side Tim Pawlenty (Republican Governor, Minnesota) is the worst choice as he doesn't win any of the theoretical matchups. Like Hagel however, the Pawlenty selection would focus more on the Midwest with a concentration on possibly stealing Minnesota from the Dems, and potentially swaying neighboring Iowa and Wisconsin while solidifying the Dakotas.

Published on May 23rd at 3:43 PM CT :: 1 Comment

The Edwards in the Room

Now that Obama has the deal sealed, the media has started to focus more time on his potential Vice President (VP but not Veep, because that's the stupidest abbreviation ever). The talking heads keep throwing out this idea of a joint ticket with Hillary; but then somebody from the panel gets wise and says "Well gee, Hillary doesn't really have anything to offer except her blue collar support," which then leaves the topic in limbo. After John's endorsement yesterday he becomes the obvious choice, but nobody wants to acknowledge the elephant in the room. He carried the largest percentage of blue collar support while he was still in the race and would add a key element, as would Hillary in the drive to win states like Pennsylvania, Ohio and Michigan. The superlative point however is that John Edwards could also give a significant boost to Obama in the crucial swing state of North Carolina, and to a lesser degree South Carolina, while Clinton's home state of New York remains a non-factor. Not only does Edwards offer a key demographic, a pivotal swing state, but he is also the cliche white male. That third fact is irrelevant to states like Minnesota and Washington, but in the bible belt it may very well be the key to winning, or at least forcing McCain to spend in states like West Virginia and Kentucky where the population has clearly demonstrated they don't feel comfortable voting for a black man. Edwards appears to remedy these problems.

What more could you ask for? Edwards has a loyal group of supporters, experience running a high stakes campaign, a sound fundraising base and a crucial demographic. The only downside lies in his general lack of military and foreign policy experience. However this minor blemish could be overshadowed by preemptively agreeing to name Jim Webb (Senator Virginia) as the Secretary of Defense, and Joe Biden (Senator Delaware) as the Secretary of State; the two most knowledgeable Democrats in the country on the respective issues, thus effectively erasing Edwards' negatives. John Edwards completes the ticket, he offers a complementary view of the issues that aligns with Obama's message while at the same time targeting key demographics Obama has not yet been able to reach.

Published on May 15th at 3:05 PM CT :: 0 Comments

John Edwards To Endorse Obama

After recieving 7% of the vote in West Virginia John Edwards has decided to endorse Barack Obama at a Michigan campaign stop within the hour. The endorsement will likely shift Edwards' 18 delegates to Obama placing him 116 delegates short, based on our figures, of the magical 2025 needed to secure the Democratic Nomination.

Published on May 14th at 4:21 PM CT :: 0 Comments

West Virginia's Irrelevance

I was collecting data from West Virginia and noticed that John Edwards received roughly 7% of the vote. This is simply just not okay. In response I'm calling out anybody, any of the 26,181 citizens of West Virginia who committed an hour of their day to vote for John Edwards. In criticizing I want to be crystal clear and overtly state that there was nothing wrong with voting for Edwards when he was actively competing, but after suspending his campaign over three months ago there is no way to justify this vote. In response I ask one simple question: what was your reasoning behind this vote? I genuinely want to know, was it a protest, something completely different, or simply irrationality. Irregardless of your reasoning your collective inability to choose amongst two candidates, both of which assimilated the ideas of John Edwards, the candidate for whom you ultimately voted, effectively thrust your state further into irrelevance.

This irrelevance permeates beyond perhaps the most transcendental Democratic Candidate in the history of this nation and verifies his decision to completely ignore West Virginia. Despite what all the pundits may say West Virginia will be a non-factor in the nomination process and will not, I repeat will not catapult Hillary to the nomination. At this point it would be a logical move for Obama and the Democrats to entirely ignore West Virginia and its 5 Electoral Votes for the General Election in much the same way they ignored it for the primary.

Jay Rockefeller, a Democratic Senator from West Virginia, up for reelection will retain his position regardless of national politics and the two Democratic House members can easily fend for themselves because the GOP has no money to contest their seats and the three special elections in Illinois, Mississippi and Louisiana depict a clear change in public sentiment that favor the Democratic side. On top of it all West Virginia has routinely voted for the national victor, but there Electoral Votes have consistently proven to be irrelevant. Instead of trying to force relevance upon a state that has historically been irrelevant why not internally concede. The recent primary showed that even democratic loyalists have an inability to submit a quality vote so why seek to persuade the entire state when your own party cannot make a rational decision. Instead move on to more important states.

Published on May 14th at 2:18 PM CT :: 0 Comments

Wind Power for Energy Reliance

This paper will specifically discuss the extent to which the USA relies on external petroleum imports and how this dependency could be alleviated in an environmentally friendly and economically stable way by replacing petroleum based electricity generation with wind power alternatives. This principle could pave the way to a brighter future regardless of your stance on Global Warming. The full report with sources and calculations is available for download in PDF format. All numerical sources were obtained directly from publicly available government reports. The calculations using this data are illustrated in the second appendix.

In the year 2006, The United States generated 22% of its electricity from petroleum products, 20.78% of which was imported. This breaks down to 20% from Natural Gas, 18.78% imported and 2% from imported Crude Oil derivatives. These totals accounts for 813 Billion kWh for Total Natural Gas, 763 Billion kW for imported Natural Gas and 81.3 Billion kWh for imported Crude Oil This translates into 844.3 Billion kWh of electricity created using petroleum imports.

To generate 763 Billion kWh of electricity using imported Natural Gas requires 3,177,260,000,000 ft^3 of Natural Gas at an electrical conversion rate of 240.26 kWh per 1000 ft^3. At a cost of $7.11 to convert 1000 ft^3 of Natural Gas to electricity equates to a cost of $22,590,318,600. This number is then added to the cost of importing this quantity of Natural Gas at a cost of $6.88 for 1000 ft^3 which calculates to $21,859,548,800. This result yields a total cost of $44,449,867,400 to produce 763 Billion kWh of electricity using imported Natural Gas.

To generate the Crude Oil contribution of 81.3 Billion kWh of electricity requires 57,448,117 bbls of Crude Oil at an electrical conversion rate of 1415.19 kWh per 1 bbl and accounts for 3.1% of the Crude Oil deficit. To convert 1 bbl of Crude Oil to electricity costs $58.80 and translates into a cost of $3,377,949,251 for the deficit amount. This number is then added to the cost of importing this quantity of Crude Oil at a cost of $59.10 per 1 bbl resulting in an expenditure of $3,395,183,686. The combination of these calculation yields a total cost of $6,773,132,936 for producing 81.3 Billion kWh of electricity using imported Crude Oil.

At this juncture the final deficit is $51,223,000,336 a year to import and then generate 20.78% of the US's electrical output. The objective now turns to the possibilities of creating this 20.78% from other greener sources while still remaining economically viable.

A wind turbine manufactured by General Electric can produce 1,500 kW,2,500 kW and 3,500 kW depending on the model and geographic location of installation at a cost of roughly $1,680 per kW. It is also estimated that any given windmill will operate at 25% efficiency year round. Using these figures to replace imported Natural Gas' electrical production of 763 Billion kWh with Wind Power will cost approximately $585,196,924,101; while the cost to replace imported Crude Oil's production of 81.3 Billion kWh with Wind Power is $62,324,435,318. The grand total required to establish this enormous Wind Power infrastructure would be $647,521,359,420. Using the three GE models requires between 179,867,044, 259,008,544 and 431,680,906 turbines. If we also acknowledge the fact that energy can be resold at a rate of approximately 2¢/kWh-10¢/kWh additional funds can be raised. According to the US Department of Energy the average resale value for wind power is $36/MWh (3.6¢/kWh) and would equate to a resale value of $32,194,800,000 a year. Based on these figures Wind Power could replace Fossil Fuel imports and recoup capital after 7.93 years if interest rates and inflation are ignored and even faster if they were considered.

The region in which a wind turbine is installed is an important factor to consider in achieving adequate electricity generation; for this section we will use farmland as an estimate because it is often flat and therefore windy as well as easily accessible. In 2002 there were 938.28 Million Acres of farm land in the US. Using this information and the requirement for between 179,867,044, 259,008,544 and 431,680,906 turbines to replace the electricity generation power of imported Petroleum leads to a turbine per acre ratio of .487, .292 and .203 respectively for the 1,500 kW,2,500 kW and 3,500 kW models when applied to farmland data. If these same turbine quantities are applied to total land in the USA the numbers then become .202, .121 and .084 respectively for the 1,500 kW,2,500 kW and 3,500 kW models. The kWh need per acre of farmland is 953.127 kWh and the ratio per acre for all land is 395.016 kWh in order to overcome the 844.3 Billion kWh produced from petroleum.

The information provided in the body of this report clearly shows that replacing petroleum imports with wind power could be an economically viable option capable of alleviating the USA's dependence on foreign petroleum imports for electricity production. This environmentally friendly approach would greatly reduce hazardous emissions released when petroleum is processed; these same emissions disrupt the ozone layer and theoretically contribute to global warming. But despite its excellent economic outlook there exist inherent issues that need to be addressed. The turbine per acre ratios are simply too large to warrant serious consideration for installation on either farmland or for total land in the USA. For this project to become a reality it would require mass adoption by the general public which raises additional concerns. The baseline issue would be the steep initial cost preventing adoption by the working class while fundamentally benefiting the wealthy. A system would have to be devised that would level the playing field for all demographics.

Two main proposals rise to the top. The first would be to force all farmers to install the required number of windmills on their property, the installation and equipment would be paid for by the government, and the government would reap the resale profits of electricity sales. However those resale profits would go directly into the farmer subsidy fund and if a given farmer qualified they would receive financial assistance, similar to the current system, but preferably with larger benefits because they are sacrificing some of their resources, mainly land, to provide energy to the country. If the guidelines for farming assistance are not met, the government would simply be allowed to add that money to the budget. There could be different tiers of commitment for the farmers to choose each with different subsidy options requiring certain threshold turbine per acre ratios to be met.

The second proposal would function in accordance with how the current electricity buy back laws work. If a citizen generates excess electricity the utilities are required to buy it back. In this situation the owner of the windmill would directly reap the profits of the electricity resale, but they would also be required to fund the initial investment. This approach increases the time required for the government to breakeven but would also increase the focus on renewable energy and a stronger long term economic outlook. This plan would require moderation to prevent only the rich from benefitting. There could be a set number of windmills that all citizens were entitled to build or there could be some sort of moving multiplier, similar to the tax code that would place a cap on resale returns. In either case the Department of Energy could regulate the process and have the power to make exceptions where necessary.

If a combination of these two proposals were applied wind power could replace imported petroleum for electricity generation in the USA and create an infrastructure of clean, renewable energy for years to come. The only down side to such a proposal is the lack of analysis on other alternatives such as Solar Power that could potentially provide a greater advantage in cost and viability. To provide an alternative comparison to Wind Power, the next publication will focus on the viability of Solar Power.

The results of our research align with the proposals put forth by the American Wind Energy Association and their goal for Wind Power to provide 20% of America's electricity by the year 2030.

Update: The objective and methods described in this plan match closely with that of a proposal presented by Al Gore on July 17th. Al Gore's plan calls for the replacement of fossil fuel generated electricity through the renewable resources of wind, solar and geothermal. While our paper focuses strictly on how wind power could replace fossil fuels, the paper also provides detailed information pertaining how the USA uses fossil fuels to generate electricity and its associated cost. The math behind Al Gore's plan can be found in the second appendix.

Published on May 2nd at 2:26 PM CT :: 0 Comments

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