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.

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