Franken Wins, Coleman Concedes

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

Filed: June 30, 2009



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

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

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

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

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



PER CURIAM. [Unanimous 5-0 decision.]

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



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


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



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


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


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



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


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


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


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


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


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


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


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


Source: Supreme Court Order via [PDF]

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A GOP Operative's Request

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

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

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

Michael Brobkorb
[Poorly Redacted Address]

June 8, 2008

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

Re: Data Practices Request

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

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

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

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

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

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


Thank you.


Michael B. Brodkorb

[emphasis added]

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

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

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


Subd. 2. Classification.

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

[emphasis added]

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


Subd. 9. Nonpublic data.

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


Subd. 12. Private data on individuals.

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

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

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

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


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

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

[emphasis added]

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

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

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

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

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

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

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

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

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

Realtime Results From Iran and USA

On June 12th, 85 percent of eligible Iranian voters cast a presidential ballot; on June 13th, many of these same citizens took to the streets to protest the apparent reelection of Ahmadinejad. The final vote tally, as reported by Juan Cole, a prominent Middle East expert and History Professor at the University of Michigan, is below:

So here is what Interior Minister Sadeq Mahsouli said Saturday about the outcome of the Iranian presidential elections:

"Of 39,165,191 votes counted (85 percent), Mahmoud Ahmadinejad won the election with 24,527,516 (62.63 percent)."

He announced that Mir-Hossein Mousavi came in second with 13,216,411 votes (33.75 percent).

Mohsen Rezaei got 678,240 votes (1.73 percent)

Mehdi Karroubi with 333,635 votes (0.85 percent).

He put the void ballots at 409,389 (1.04 percent).

Source: Stealing the Iranian Election via

Despite the veil of electoral authenticity, rather large anomalies have been identified. Juan Cole quickly provided circumstantial evidence while the academic folks took a little more time completing their peer-reviewed papers. A consensus has emerged, even the Iranian State TV has acknowledged discrepancies in the election.

The purpose of this article is to invalidate the preliminary claims of election fraud in Iran. The first attempt came in the form of a graph popularized by The Atlantic columnist Andrew Sullivan. A composite of the original graphs is presented below; the multiple colors depict different perspectives on the same data set:

Iran Linear 2009 Relationship

Andrew Sullivan posted multiple versions of this graph to his blog on June 13th. From the various versions it became clear that the data source was consistent, but the application varied. Iran's Entekhab News and web based both used the election results provided by to create their graphs; which were later referenced by Sullivan.

The percent of the vote reported at each given coordinate is calculated with respect to the final two-way vote total; the reporting percent is overlaid near its associated coordinate. It is also important to note that there are two data sets. One is blue and has six dots while the other is red and has seven dots; the other red dots are exactly hidden behind the six blue points.

I will now provide four additional facts which have not be explicitly stated; these facts are either crucial to the creation or subsequent interpretation of the original graphs:

1. Ahmadinejad's vote total is represented by the X-axis and Mousavi's vote total by the Y-axis.

2. Entekhab News plotted [PNG] seven data points while TehranBureau's graph [PNG] excluded the first data point, while using the other six.

3. The regression technique is a linear least-squares approximation that is not forced through the origin. Ideally, the linear equations should pass through the origin; because at some point in time, before any votes have been counted, both candidates have zero votes.

4. The original source is written in Farsi, a language I cannot read; because of this, the coordinates for the data points were not explicitly available. TehranBureau provided [PNG] coordinates for the six data points they used, but the first point used by Entekhab News is still unavailable. It was however possible to use the least-squares equation depicted on their graph and the other six points to determine a very reliable estimate[*] for the first by reversing the regression. The coordinates used on the above graph are presented below:

    Report %   Ahmadinejad      Mousavi       Two Way
     12.98*      3,469,534     1,429,332      4,898,867
     26.45       7,027,919     2,955,131      9,983,050
     39.37      10,230,478     4,628,912     14,859,390
     54.55      14,011,664     6,575,844     20,587,508
     62.10      15,913,256     7,526,117     23,439,373
     66.50      16,974,382     8,124,690     25,099,072
     72.15      18,302,924     8,929,232     27,232,156

     Final      24,527,516    13,216,411     37,743,927		

By applying the data within fact #4, it becomes clear that the graph only encompasses about 45% or 60% of the total vote for the six and seven point graphs respectively. The entire analysis takes place within this region; the respective linear correlations are only valid within these ranges.

Sullivan initially referenced the Entekhab News version but it was not and still is not useful due to the language barrier; Sullivan would later reference the English analysis by Judging from their about page, shares strong ties with the Columbia Journalism School and features a slew of qualified contributors. Muhammad Sahimi, a chemical engineer and TehranBureau contributor, provided the following analysis on the six point graph:

The vertical axis (y) shows Mr. Mousavi's votes, and the horizontal (x) the President's [Ahmadinejad]. R^2 shows the correlation coefficient: the closer it is to 1.0, the more perfect is the fit, and it is 0.9995, as close to 1.0 as possible for any type of data.

Statistically and mathematically, it is impossible to maintain such perfect linear relations between the votes of any two candidates in any election - and at all stages of vote counting. This is particularly true about Iran, a large country with a variety of ethnic groups who usually vote for a candidate who is ethnically one of their own.

Source: Faulty Election Data via

[The referenced article has since been removed from]

Muhammad Sahimi's assertion is not well received and lacks any proper causation; especially given the 45% window of relevance. In fact his "impossible" claim appears to be baseless when compared to relevant data from the 2008 Presidential Election in the USA. I intend to reproduce the high R^2 value using real-time data I collected on November 4th, 2008. The reported vote totals from each state were queued for download about 400 times an hour from; data was collected in a circular queue as fast as possible. This does not mean that I have a complete set of data; networking and storage issues created significant discontinuities within the data, especially as the night progressed. MSNBC was used as the source because it was the only website that presented the election results as pure HTML; CNN, CBS, et al. used an asynchronous reporting scheme that prohibited the automated retrieval of their reported election results. Using some of this data, primarily from the East Coast, I will prove that a linear trend with a very high R^2 is the expected outcome of such a graph.

Let's first begin by analyzing Kentucky, one of the first states to begin reporting results. The state of Kentucky lies across the Eastern and Central time zones; about half the state's polls closed at 6 ET and the other half at 7 ET. The graph below illustrates the number of votes received by each presidential candidate with respect to the time at which they were recorded; I began collecting data from all states at around 6:40 CT. The graph below depicts each US candidate's vote total as a function of time and looks decisively non-linear, as many would expect:

Kentucky 2008 Election Votes

The graph above simply intends to illustrate the discontinuities and imperfections of our data set in a more logical format. The graph above is not supposed to resemble the Iran graph; the version intended for comparison, using Kentucky data, is presented below:

Kentucky 2008 Election Linear

From simple inspection, the Kentucky graph appears to be reasonably linear, clearly depicting a strong similarity to the Iran graph of internet lore. Although the R^2 is slightly lower than its TehranBureau counterpart, an R^2 value of .9995 still remains plausible. I would argue that Kentucky represents an acceptable microcosm of "ethnic groups," but other factors may be at play. Kentucky may be the norm or it may be the exception, the only way to find out is by analyzing more data. I conducted the same analysis using Virginia's data; first the votes vs. time graph from Virginia for a glimpse at our data set:

Virginia 2008 Election Votes

The Virginia data is clearly smoother than its Kentucky equivalent, but the curves resemble the same general form. I looked at a number of other states and the same general shape held across geographic and demographic borders. We'll now explore the relation between each candidate's vote totals in Virginia:

Virginia 2008 Election Linear

The Virginia graph seems to support the linear trend we saw in the Kentucky graph, but again the R^2 value is slightly lower than our target. This discrepancy can likely be attributed to the large number of points plotted, around 1,500, in the preceding graphs. If we were to strictly adhere to our four previously stated facts, specifically by using just six or seven points, we could probably achieve higher R^2 values. Let's go ahead and do that now.

The observations I made earlier will now play an important role in definitively disproving the "impossibility." Let's first begin by establishing the various threshold reporting levels for Kentucky and Virginia with respect to the original:


  Report %    Time CT   McCain       Obama      Two Way
   16.76       18:40    173,406     126,564      299,970
   26.49       19:12    268,616     205,480      474,096
   36.00       19:32    371,124     273,229      644,353
   53.03       20:02    532,940     416,231      949,171
   62.09       20:17    621,411     489,848    1,111,259
   64.64       20:24    642,008     514,837    1,156,845
   80.57       20:27    818,572     623,366    1,441,938

   Final              1,043,264     746,510    1,789,774

  Report %    Time CT   McCain       Obama      Two Way
   13.38       19:02     278,094     214,706     492,800
   26.53       19:32     547,199     430,212     977,411
   40.32       19:52     780,552     705,180   1,485,732
   56.49       20:17   1,049,451   1,031,789   2,081,240
   63.84       20:42   1,179,737   1,172,437   2,352,174
   67.88       20:52   1,251,123   1,250,040   2,501,163
   72.36       21:07   1,328,103   1,338,087   2,666,190
   Final               1,726,053   1,958,370   3,684,423

Some rough extrapolations must be done to satisfy these thresholds; there are several ways to do this, but the two-way vote total was chosen as the measuring stick. When the distribution of the data resulted in two points equally spaced from the intended threshold, the larger percentage was used. This is not a perfect scenario, but it should still serve to facilitate an unbiased result. If you don't like my methodology you can download the data in CSV format at the end of this article and make your own rules.

The composite six and seven point graphs for Kentucky, Virginia, Michigan and Pennsylvania are presented below with strict adherence to the original's methodology:

Kentucky 2008 Election Linear

The Kentucky data set is by far the most variable of the four states depicted and the threshold percentages also have the largest error relative to their corresponding target. Unfortunately, Kentucky is unable to provide definitive evidence, in terms of the R^2 value, to entirely vacate the "impossible" claim. Virginia is our next stop:

Virginia 2008 Election Linear

The R^2 value associated with the six point regression, .9996, is higher than the R^2 value of .9995 associated with the TehranBureau graph. The seven point R^2 value is however lower than the Entekhab News value of .9986. This unarguably debunks Muhammad Sahimi's assertion of statistical and mathematical impossibility. Such an outcome is very possible, perhaps even probable.

Virginia is also geographically representative of the urban/rural population demographics in Iran. Virginia has an urban population of 72.9% according to the 2000 Census while Iran's urban population is 68% according to their 2006 Census. Dissimilarities do however remain, including the margin of victory and the total number of votes cast; and while this may not be an ideal comparison, the aspect of impossibility has been erased. Onto Michigan:

Michigan 2008 Election Linear

The Michigan graph overcomes our seven point target with an R^2 of .9991, but it fails to match the six point result put forth by TehranBureau. The urban population of Michigan, at 75.5%, is also fairly close to Iran's. We have yet another example proving the possibility of such a correlation. Pennsylvania continues the trend:

Pennsylvania 2008 Election Linear

Pennsylvania's R^2 values match the TehranBureau mark and fall just short of the .9986 value needed to equal the seven point correlation coefficient presented by Entekhab News. Pennsylvania is however more urban than Iran by about 10.0%; but given that this is now the third state with an R^2 in excess of, or equal to, the value claimed by an Iranian source, the presence of a linear correlation is irrelevant to the possibility of election fraud.

Having dispelled the individual R^2 values for both the six and seven point data sets, I never ran into a state that met or exceeded both R^2 values. This lack of repeatability may be significant, but based upon the preceding work, its likely just a case of random coincidence and inconsistent data.

The bottom line is this, a linear relationship between two candidates' vote totals is the expected correlation. The direct result of this research does not however prove or disprove election fraud, it simply invalidates the linear correlation metric as a means of identifying fraud.

And finally, the real time data as promised:

Kentucky: [CSV, 49KB]
Virginia: [CSV, 60KB]
Michigan: [CSV, 56KB]
Pennsylvania: [CSV, 62KB]

If you do anything useful or interesting with this data, please let me know.

Published on June 24th at 9:15 AM CT :: 3 Comments

Disbursements for Franken

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

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

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

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

Total Costs and Disbursements         $161,510.63 

Dated: April 28, 2009

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

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

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

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

I. Introduction

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


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

Dated: May 8, 2009

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

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

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

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


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

Dated: May 13, 2009

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

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

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

Judgment Information

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

Monetary Award:
Monetary Amount: $94,783.15

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

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

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

Dated: June 10, 2009

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

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

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

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

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

MNSC Oral Arguments

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

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

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

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

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

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

Justice Page: You may proceed when you are ready.

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

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

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

Justice Page: Substantially? What does that mean?

Source: Minnesota Judicial Branch [Mirror:]

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

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

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

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

Source: Minnesota Judicial Branch [Mirror:]

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

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

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

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

Source: Minnesota Judicial Branch [Mirror:]

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

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

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

Source: Minnesota Judicial Branch [Mirror:]

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

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

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

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

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

Video: .WMV, 09:37, 158MB

The general gist of Coleman's address was that there are voters who have not had their vote counted, and are therefore disenfranchised; until they are enfranchised the campaign will continue to represent the interests of these 4,400 voters. This statement seems to align with Friedberg's opening remarks. Mr. Friedberg cited Minnesota's Judicial history of addressing all problems before they reach the federal level. Drawing from this prior statement it seems logical to conclude that if the MNSC does not address all of the problems, the Coleman campaign will seek federal relief.

Marc Elias then addressed the media after the Coleman procession exited the foyer:

Video: .WMV, 04:19, 71.1MB

Marc Elias' brief address was followed up by a few soft questions from the media. Elias basically reiterated that he was confident of a Franken victory, but that he had no specific timeline in mind for a Supreme Court decision.

If I had to guess at a timeline I would say by July 4th, but I really have no idea; the whole ordeal could drag out even further depending on what the MNSC concludes. Coleman's best case scenario is for the ECC to resume the trial with different rules and Franken's best case scenario is an outright win. Its also possible for this to end up in federal court as discussed above. I doubt very much will happen within the next two weeks.

I also stopped by the Ramsey County Court House to obtain some other court documents that I'll hopefully be able to post sooner rather than later.

Published on June 1st at 4:13 PM CT :: 2 Comments

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