Banaian's Testimony Denied

A number of court documents have been filed and then subsequently posted to the litigation page within the past two days; some are important, others not so much. I'll cover the documents chronologically from oldest to newest. The first document is probably the least important, but it's worth mentioning for the historical value.

The Coleman campaign filed the first post-categorization motion essentially asking the Election Contest Court to reconsider their decision regarding categorization. An overview of Coleman's arguement is presented below; the document was drafted on February 16th and then filled with the court on February 17th:

Dear Judges Hayden, Reilly and Marben:

We write pursuant to Minn.R. Gen. Prac. 115.11 to request the Court's permission to file a motion for reconsideration of the Court's February 13, 2009 Order Following Hearing. We respectfully believe the Court has created a significant problem by adopting standards to be applied to the remaining unopened absentee ballots which are materially different than those which have been applied previously-by election officials, by recount personnel, by the Supreme Court and, indeed, by this Court itself--to absentee ballots already opened and counted. If the Court maintains the standards set forth in that ruling, it will serve only to further exacerbate inconsistencies and inequities in the process and the already-existing equal protection problem. Let us explain.


On February 3,2009, when the parties stipulated and the Court signed an order that all of the 933 ballots opened on January 3, 2009 were "properly and lawfully opened and counted," even though it appears scores of them do not meet these standards.

As a result, there are certainly hundreds, and likely thousands, of votes already counted that under the Court's February 13,2009 Order were not legally cast votes-meaning that the recount included a material number of illegally cast votes which should not have been included in the totals the Canvassing Board certified. In our motion to reconsider, we will provide specific and numerous example ballots to the Court so that it may under the statutory power granted it for this contest correct these inconsistencies.

We believe the standard this Court applies to determine which of the remaining rejected absentee ballots is a legally cast vote must be consistent with the standards this Court has already applied to other ballots as well as the same standard applied to the thousands of absentee ballots already opened and counted by the counties. The earlier standards consistently applied include, as the testimony of county officials has made clear, that whether a voter had otherwise voted in the election was determined solely with reference to the roster in his or her precinct and that, among other things, many counties did not check the registration of the witness and some did not. Moreover, the Court should consistently apply the same methods used by the counties and municipalities on election day to determine whether an absentee ballot should be accepted.

One thing is clear about American elections: all voters must be treated equally. To apply different standards to different absentee voters is prohibited by the Constitution. In light of these facts and circumstances, which the Court may not have had the opportunity to consider, Contestants respectfully seek permission to file a motion, with attached exhibits, seeking reconsideration of the Court's February 13, 2009 ruling.

Source: Letter Requesting Permission to File a Motion for Reconsideration via [PDF]

The Coleman campaign presented a clever, yet reused argument suggesting that some ballots were actually improperly counted and should therefore be uncounted as to not disenfranchise those who voted properly. This course of reasoning presents another angle to the Equal Protection argument while attempting to directly reduce their vote deficit.

Unfortunately for the Coleman campaign, the Election Contest Court denied the entirety of their request. The full text of the order is presented below:

The above-captioned matter came before the Court. on February 16, 2009. pursuant to Contestants' request to bring a motion to reconsider the Court's February 13, 2009, Order. Based upon the contents of the file, the Court makes the following:


1. Respondent's request to bring a motion to reconsider the Court's February 13, 2009 Order is DENIED.

Dated: February 18, 2009

Source: Respondent's Request to Bring a Motion to Reconsider Order is Denied via [PDF]

I don't necessarily think Coleman's premise is wrong, as there probably were improperly accepted ballots, but he faces the burden of proving this assertion. It is just as difficult to check 3 million ballots for improper rejection as it is improper acceptance and I don't think the Election Contest Court was prepared to order a full scale examination into Coleman's premise without some empirical evidence. I think its also worth noting that the 933 wrongfully rejected absentee ballots have been assimilated into the larger subset of absentee ballots and are not individually identifiable; it would be impossible to reexamine only those 933 ballots.

The next document was filed by Franken and focuses on their opposition to the Equal Protection argument presented by Coleman. The Franken campaign mainly asserts that the idea of Equal Protection applies to a lesser degree when absentee ballots are concerned; they cite a 2003 ruling that established absentee voting as a privilege and not a right in the state of Minnesota. The first and last paragraphs of the aforementioned memorandum are presented below:

Contestants continue to occupy this Court's time and to delay the seating of Minnesota's second senator with claims that already have been argued and rejected. Contestants' most recent attempt to advance their purported Equal Protection claim comes in the form of an offer of proof into evidence. Contestee respectfully request that this Court accept Contestants' offer of proof for purposes of preserving the record and confirm its prior rulings rejecting Contestants' Equal Protection claim as a matter of law, both on substantive and procedural grounds.


On at least two, independent grounds, therefore, Contestants' Equal Protection claim fails as a matter of law. Additional independent reasons for its failure are set forth in Contestee's Memorandum of Law in Opposition to Contestants' Motion for Summary Judgment, which Contestee incorporates herein. For the foregoing reasons, Contestee respectfully requests that the Court accept Contestants offer of proof for appellate purposes and confirm this Court's prior rulings that Contestants' Equal Protection claim is deficient as a matter of law, both on substantive and procedural grounds.

Dated: February 18, 2009.

Source: Memorandum of Law in Opposition to Offer of Proof via [PDF]

This next filing is more curious than important. Ben Ginsberg, an attorney for Coleman, has asked the Election Contest Court to afford him a temporary license to practice law in the state of Minnesota; Mr. Ginsberg is a member of the DC Bar, but he does not currently posses the credentials required to actively participate in the court room proceedings. Mr. Ginsberg has often been present within the court room, but he has never been the empowered representation. Mr. Ginsberg's request to the court is posted below:

Contestants Cullen Sheehan and Norm Coleman hereby move for permission for Benjamin L. Ginsberg, attorney with Patton Boggs 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 Benjamin L. Ginsberg and the files and proceedings herein.

February 18, 2008

Source: Contestants Motion for Admission Pro Hac Vice of Benjamin L. Ginsberg via [PDF]

There is essentially no reason for this request to be denied; three attorneys representing Franken presented a similar scenario and the court granted them their request on January 12th. Assuming Mr. Ginsberg is granted his request, it remains to be see how he will contribute to the daily proceedings.

The final filing, and the most important, deals with King Banaian's testimony. The court finally reached a decision:

The above-entitled matter came on for hearing before the Court on February 12, 2009 upon a Motion in Limine by Contestee to Exclude Testimony of King Banaian. 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:


1. Contestee's Motion in Limine to Exclude Testimony of King Banaian is GRANTED.

2. Any other relief not specifically provided herein is DENIED.

3. The attached Memorandum is incorporated herein by reference.

Dated: Feb 18, 2009


III. Analysis [from the attached memorandum]

The only question that can be decided in an election contest is which party received the highest number of legally cast votes, and therefore is entitled to receive the certificate of election. Minn. Stat. § 209.12. The Court will be reviewing all ballots presented according to the uniform standard contained in Minnesota Statues Chapter 203B. It is irrelevant whether there were irregularities between the counties in applying Minnesota Statutes § 203B.12, subd. 2. prior to this election contest. The Court does not believe Banaian's testimony would assist in determining the issues properly before it.

Source: Order on Contestee's Motion in Limine to Exclude Testimony of King Banaian via [PDF]

I don't really know if this decision inherently alters Coleman's position, but we can at least definitely say that the King Banaian saga is over. The issue may resurface during the appeals process if Coleman is unable to overcome the current deficit. This order also marks the first occasion in the entire litigation in which a motion, by either candidate, has been granted outright.

The next step for Coleman may be the Equal Protection argument, but remember, there are still other unresolved issues; the double counting issue still remains unresolved along with some other, more minor counting issues. The court has focused so much of their time on the absentee ballot situation that the double counting issue has been almost entirely ignored. The resolution of the absentee ballot problem may however lead to the resolution of the double counting issue.

The Election Contest Court will resume tomorrow and King Banaian won't be in attendance.

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