The Status Quo Remains

After a busy day yesterday, I have just two court fillings to work with today; I'll try and keep it brief, for your sake and mine.

The first document details an order by the Election Contest Court in response to Coleman's Motion for a Temporary Injunction. Coleman was seeking to halt the redaction of identifying information contained on the 933 absentee ballots which were deemed to have been wrongfully rejected. I've excerpted the latest order in it's entirety. I've also selected a few passages from the attached memorandum to aid in the illustration of the ECC's reasoning with respect to the original stipulation:

The above-entitled matter came before the Court upon Contestants' Motion for Temporary Injunction. Counsel noted their appearances on the record. The Court having heard and read the arguments of counsel, and the files, records, and proceedings herein, makes the following:


1. Contestants' Motion for Temporary Injunction is DENIED.

2. The Court's Memorandum, filed herewith, is incorporated herein.

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


Dated this 24 day of February, 2009.


I. Introduction

Approximately 2.9 million Minnesota citizens cast a ballot on Election Day. Of these, roughly 286,000 voters cast absentee ballots. Election officials rejected roughly 12,000 absentee ballots, 5,600 of which are at issue in this election contest and remain unopened and uncounted. This represents far less than one percent of the total number of ballots cast by Minnesota citizens in the 2008 election.


II. A Binding Stipulation and Court Order Govern the Legal Status of the 933 Ballots Opened and Counted on January 3, 2009

On February 3,2009, the parties entered into a stipulation in which they agreed that the 933 absentee ballots opened and counted on January 3, 2009 were "properly and lawfully opened and counted," and the results were "properly and lawfully included in the results of the 2008 United States Senate election as certified by the Minnesota State Canvassing Board." (Order Feb. 3, 2009.) Accordingly, Contestants "dismiss[ed] with prejudice all claims in the Notice of Contest relating to the 933 Ballots." (Id.) The parties further agreed that the Court should direct the Secretary of State to "take all necessary steps to remove and/or redact permanently the numbers affixed to the ballot envelopes on January 3, 2009." (Id. at 2.) The terms of the parties' agreement were acceptable to the Secretary of State. The parties' agreement was thereafter memorialized in the Court's Order issued February 3, 2009.

The binding stipulation and Order of February 3, 2009 are dispositive of Contestants' motion. Both campaigns have been competently and ably represented by counsel throughout these proceedings. The stipulation was drafted by counsel and signed by sophisticated parties familiar with the subject matter. The Court presumes the parties were apprised of the risks and benefits associated with entering into this agreement. At the parties' behest, the Court adopted the parties' stipulation in its totality and incorporated those findings into the Court's Order of February 3, 2009.

The parties' stipulation, and the Court's Order arising therefrom, is binding. The agreement was reached and submitted to the Court for its adoption after thoughtful negotiation by sophisticated and knowledgeable participants. The Court further analyzed Contestants' motion pursuant to the Dahlberg factors, discussed in greater detail below. In reviewing Contestants' motion in light of Dahlberg, the Court finds the public interest in ensuring the fundamental right to secrecy of a voter's ballot and the importance of upholding contract law weighs against granting Contestants' motion for injunctive relief.


V. Conclusion

For the aforementioned reasons, Contestants' motion for a temporary injunction is denied.

Source: Order Denying Contestants' Motion for Temporary Injunction via [PDF]

The above ruling is essentially irrelevant; the status quo remained entirely unchanged. The ECC simply stood behind their prior ruling; the 933 ballots were going to be redacted before, and they are still going to be redacted. Moving on.

Our second filling is also an order by the ECC in response to a Coleman motion. At the very beginning of the litigation process, Coleman attempted to group, or form a class, of all voters whose absentee ballot was rejected. In forming a class, the Coleman campaign sought to include as many future votes as possible. In attempting to create this class, the Coleman campaign intertwined their argument with the Nauen 61. I've quoted the complete text of the order below, along with the issue's history as provided within the introduction of the attached memorandum:

This matter comes before the Court on Intervenor Norm Coleman's motion for certification of a class. The Court heard argument on this motion on February 12, 2009. The Court having heard and read the arguments of counsel, and based upon the files, records, and proceedings herein makes the following:


1. Intervenor Coleman's motion for certification of a class is DENIED.

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

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

Dated: February 23, 2009


I. Introduction

On January 13, 2009, certain individual Petitioners filed a petition pursuant to Minnesota Statute § 204B.44 with the Minnesota Supreme Court arguing that their ballots had not been counted in the 2008 general election due to official errors and omissions. Norm Coleman ("Coleman") moved to intervene in the Petitioners' proceeding before the Supreme Court. On January 16, 2009, the Supreme Court issued an order granting Coleman's motion for intervention and directing the Petition to this Court for consideration and decision within the current election contest. In that Order, the Supreme Court observed that, "[j]udicial efficiency and the interests of justice will better be served if the claims presented in this matter are addressed by the three judge district court panel in the election contest proceeding in Ramsey County District Court." (Order, January 16, 2009 at 1-2.)

On January 23, 2009, Coleman moved this Court for certification of a class pursuant to Minnesota Rule of Civil Procedure 23. Coleman seeks "certification of a class of thousands of voters who submitted absentee ballots in the November 4, 2008, general election...." (Intervenor's Mem. at 1). Petitioners filed an objection to this motion on February 9,2009. The Court held a hearing on this motion on February 12, 2009. At the hearing, Contestee Al Franken ("Contestee") moved the Court for limited intervention in Petitioners' § 204B.44 proceeding for purposes of objecting to the motion for class certification. Contestee joined in Petitioners' opposition to Coleman's motion.


D. Adequacy of Representation is Not Satisfied

Rule 23.01(d) requires that "the representative parties will fairly and adequately protect the interests of the class." Representational adequacy requires that the representative parties' interests must coincide with the interests of other class members and that the parties and their counsel will competently and vigorously prosecute the lawsuit. Aria, 367 N.W.2d at 513. Factors used to determine if the class representative and class counsel are adequate include: (1) whether the representatives' interests are sufficiently identical to those of absent class members so that the representatives will vigorously prosecute the suit on their behalf; (2) whether the attorneys are qualified, experienced, and capable of conducting the litigation; and (3) whether the representatives have any interests that conflict with the objective of the class they represent. Streich, 399 N.W.2d at 215. Given that Coleman has failed to propose a class representative or class counsel, there is no adequacy of representation in the proposed class.

Under Rule 23 each of the four prerequisites of 23.01 must be established before a class may be certified. The Court finds that Coleman has failed to carry his burden of establishing that typicality, commonality or adequacy of representation exist in the potential class of voters. Coleman's motion for class certification is denied.

Source: Order Denying Motion for Certification of a Class via [PDF]

The Election Contest Court basically determined that the entire subset of rejected absentee ballots is not homogeneous; they asserted that all rejected absentee ballots were not created equally. It is still possible, perhaps probable, for distinct classes to exist within the entire rejected absentee ballot subset, but the Coleman or Franken campaigns have yet to establish their existence. This order does nothing to diminish the future identification of these smaller, distinct classes as the ECC only stated that the entire subset is not a distinct class; they made no allusion to other, potential classes.

The Coleman campaign has hinted at the possibility of concluding their side of the arguments before the weeks end, but with three days to go, its anybody's guess. The court resumes at 9 AM CT on Wednesday.

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