Franken Wins, Rules ECC

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


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

Accordingly, IT IS ORDERED that:

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

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

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

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

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

There being no just reason for delay,


Dated: April 13 2009

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

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

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


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

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

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

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

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

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


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

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

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

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

I. Introduction

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


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

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

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

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

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

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

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

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

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

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

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

Total:            351

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

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

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

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7 Response(s) to Franken Wins, Rules ECC

4/14/2009 12:54:37 AM CT

Jesus h christ seat Franken NOW!
4/14/2009 12:59:03 AM CT

Jesus H Christ seat SENATOR Franken NOW!
4/14/2009 4:34:57 AM CT

Jesus H Franken seat Senator Christ NOW!
4/14/2009 11:31:06 AM CT

Franken C Senator Christ seat Jesus NOW!
4/14/2009 3:04:15 PM CT

i used to live in minnesota, it rally dosen't suprise me to hear that colman is going to challange. hey norm take your toys and leave the sand box. you've pooped in it long enough. it's time to let someone clean it out and start fresh.
4/14/2009 5:30:04 PM CT

kick tim pawlenty's ass so hard that his guts spew out!
4/14/2009 5:30:31 PM CT


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