Franken's Amended List

On February 4th, the Franken campaign moved to amend their original counterclaim to Coleman's election contest notice. Then on February 6th, the Coleman campaign essentially consented to Franken's request. Finally on Saturday afternoon, the Franken campaign released their newly amended list to members of the Minnesota media as well as the Election Contest Court.

The Franken release came in the form of a twenty-five page PDF; two exhibits, labeled X and Y accompanied the document. An overview of these exhibits is provided within the first counterclaim, as presented below in it's entirety:




1. Franken has identified a number of absentee ballots that were rejected in error by election judges and local election officials, in the first instance, or by Coleman as part of the absentee ballot review process pursuant to order of the Minnesota Supreme Court.

2. In a complete about-face from his previous position, Coleman now alleges that approximately 4,800 absentee ballots were rejected in error. Of those, Franken agrees that the absentee ballots identified in attached Exhibit X should be opened and counted or, as to those rejected for lack of registration, the envelopes should be opened to determine if voter registration applications were submitted.

3. Franken further alleges that the absentee ballots identified in attached Exhibit Y, but not among those identified by Coleman, should be opened and counted or, as to those rejected for lack of registration, the envelopes should be opened to determine if voter registration applications were submitted.

4. A number of the absentee ballot envelopes and related materials identified in Exhibits X and Y are the subject of pending Minnesota Government Data Practices requests and trial subpoenas. Franken expects to refine these Exhibits as information is received and as evidence is adduced at trial.


Source: Contestee's First Amended Answer and Counterclaims via [PDF]

I've parsed through each of these exhibits and compiled the following spreadsheets to allow for a more efficient dissemination of the information contained therein:

Exhibit X

Exhibit Y

Court Filing: PDF, 753 KB
Voter List: CSV, 28 KB
Ballots by County: CSV, 2 KB
Extrapolations: PDF, 121 KB

Court Filing: PDF, 749 KB
Voter List: CSV, 26 KB
Ballots by County: CSV, 3 KB
Extrapolations: PDF, 122 KB

I've further condensed the data provided above, into the table below:

                       Identified        Extrapolation
                         Voters       Coleman      Franken
Exhibit X                  781         319.06      334.10
    Coleman Counties       451         142.87      104.39
    Franken Counties       330         103.39      175.72

Exhibit Y                  804         305.53      368.88
    Coleman Counties       300         215.68      158.39
    Franken Counties       504         162.67      264.50

Total                     1585         624.59      702.98
    Coleman Counties       751         358.54      262.78
    Franken Counties       834         266.05      440.21

If each one of the 1,585 ballots listed within Franken's latest filing are opened and counted, Franken would gain about 78 votes. This extrapolation assumes a linear relation between the certified recount result on the county level and the inclusion of the listed absentee ballots. Absentee ballot counting in Hennepin County is delegated to each city, as such, our extrapolation uses the city totals from each applicable Hennepin County municipality as provided by the Franken campaign.


There were a plethora of other court filings released today, but filed prior to today, in addition to the information presented above. We'll start with a rather ambitious request by the Coleman campaign:

PLEASE TAKE NOTICE THAT at a time set by the Court Contestants will move the Court to enter a ruling applying the standards of Minn. Stat. §§ 203B.12 and 203B.24, as the Court has announced those standards, to all absentee ballots cast in the election for U.S. Senate to determine whether those ballots are legally cast votes. The motion is based on the accompanying Memorandum, Affidavit of James K. Langdon, and all the files, records, evidence in the record and the proceedings herein.

Dated: February 20, 2009

Source: Contestants' Notice of Motion and Motion via [PDF]

The Coleman campaign is essentially asking the Election Contest Court to reconsider every counted absentee ballot. This request has essentially no chance of being granted but it raises an interesting point none the less. The official recount guide states that the purpose of the recount "is not to determine if absentee ballots were properly accepted." It's certainly possible, even probable that some absentee ballots that were counted should not have been counted. The Coleman campaign does not however provide any empirical evidence. Without proof of wrongdoing, Coleman's assertion opposes Dep. Sec. Jim Gelbmann's testimony and the idea that "the decision of the local election officials should be assumed to be correct."

The Coleman campaign also presented a nine page memorandum supporting their aforementioned motion. I've posted the conclusion below:



Contestants do not support a remedy that would disenfranchise Minnesota voters whose ballots already have been counted, but the Court's current rulings dictate that result. All similarly situated voters must be treated consistently-and fairly. Elementary fairness as well as equal protection of the laws demands no less. Moreover, the Court is statutorily precluded from including illegal votes in determining who won the election.

Contestants accordingly respectfully request that the Court grant their Motion for Ruling Applying February 13,2009 Order regarding Minn. Stat. §§ 203B.12 and 203B.24 to all absentee ballots previously counted in this election.

Dated: February 20, 2009

Source: Contestants' Memorandum of Law in Support of Motion for Ruling Applying February 13 2009 Order to Previously Counted Absentee Ballots via [PDF]

Franken has either not filed a response, or the campaign's response is simply not yet listed on the litigation website.

The group of 61 petitioners represented by Charles Nauen has filed additional evidence and presented a new motion for summary judgment requesting the inclusion of nineteen previously denied petitioners. The entire motion for summary judgment is displayed below:



PLEASE TAKE NOTICE that as soon the parties may be heard, Petitioners Dennis Peterson, et. al. ("Petitioners"), through their attorneys, Lockridge Grindal Nauen P,L.L.P., will renew, and hereby renew, their motion to this Court, the Honorable Elizabeth A. Hayden, the Honorable Kurt 1. Marben, and the Honorable Denise D. Reilly, presiding, at the Minnesota Judicial Center, 25 Rev. Dr. Martin Luther King Jr. Boulevard, St. Paul, State of Minnesota, for the entry of an order granting summary judgment in their favor pursuant to Rule 56 of the Minnesota Rules of Civil Procedure.

Petitioners respectfully request this Court grant judgment as a matter of law in their favor as follows:

1. Directing that 19 Petitioners' absentee ballots shall be opened and counted immediately, and the total be declared and certified, for such use as might be appropriate by the United States Senate, this Court in the above-captioned matter, or any other proper use under law; and

2. Granting Petitioners such other relief as the Court deems just and appropriate.

Dated: February 20, 2009

Source: Petitioners Notice of Motion and Renewed Motion for Summary Judgment via [PDF]

The group of petitioners represented by Mr. Nauen is widely considered to be very Franken friendly for two reasons. First, Mr. Nauen seems to support the Democratic agenda based upon his contributions and secondly, the majority of the 61 petitioners are found somewhere on Franken's wrongfully rejected list. It's very unlikely that Coleman will gain votes based upon the potential inclusion of these nineteen ballots.

Our final court document was drafted by the Franken campaign last Wednesday, but was not filed until Friday. The first and last paragraphs of the memorandum are presented below:

A question has been raised regarding the form and specificity required for an offer of proof when the Court excludes evidence. Contestee Al Franken provides the following legal authority and argument to assist the Court. At the outset it should be noted that the purpose of an offer of proof is to create a record on which the trial court can make a ruling and to create and preserve a record upon which an appellate court may review lower court decisions. Thus, this Court certainly may and should allow Contestants to make an appropriate written or oral offer of proof for the purposes of creating a record for appellate court review, but it most assuredly has no duty whatsoever to allow, assist or facilitate the creation of a record to assist Contestants in a collateral attack on this Court, its decisions to date in this matter, or Minnesota's electoral system more generally. The suggestion that somehow different standards should be applied to an offer of proof on account of Contestants' apparent intention to file federal court litigation attacking this Court's decisions in this matter is seriously misplaced, misapprehends the purposes of an offer of proof and misstates applicable law.


The Court properly may require that an offer of proof be in the form of an oral or written summary by the attorney, rather than the testimony sought to be adduced. To avoid further waste of this Court's time, delay in the conclusion of this process and the seating of Minnesota's second United States Senator, and further cumulative testimony apparently designed to undermine the legitimacy of this election and this Court's process, Contestee respectfully submits that Contestants should be directed to make a written offer of proof, in whatever level of specificity they would like, but no further testimony should be entertained with respect to Contestants' dismissed equal protection claims.

Dated: February 18, 2009

Source: Memorandum of Law Regarding Form and Level of Specificity Required in an Offer of Proof via [PDF]

I'm not entirely sure of the exact intent of this filing, but it appears as though the Franken campaign is trying to limit the topics on which the Coleman campaign can call witnesses to the stand. The Franken campaign is requesting that the Coleman campaign be forced to present an offer of proof, (which upholds the presentation of evidence in the event of an appeal) instead of calling a witness to support any equal protection argument.

That's it for now, but I suspect another round of documents will be published tomorrow as the litigation resumes at 9 AM CT.

Update [2:33 AM CT]: Franken sent out another order to the Minnesota Media Monday afternoon which the litigation website eventually posted. The filiing is twenty-five page and is dated February 23rd:

The above-entitled matter came on for hearing before the Court on January 23, 2009, upon Contestee's Conditional Motion for Partial Summary Judgment on Certain of Contestants' Claims and on Contestee's Conditional Motion for Partial Summary Judgment on Certain of Contestee's Counterclaims. 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 Conditional Motion for Partial Summary Judgment on Certain of Contestee's Counterclaims is GRANTED IN PART AND DENIED IN PART.

2. The following absentee ballots shall be provided to the Secretary of State at a date to be determined by the Court to be opened and counted at a date to be determined by the Court, and the total be declared and certified for such use as might be appropriate by the United States Senate, this Court, or any other proper use under law.

[Table identifying twelve individual voters and their associated county.]

3. Contestee's Conditional Motion for Partial Summary Judgment on Certain of Contestants' Claims is DENIED.

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

5. The attached Memorandum is incorporated herein by reference.


j. Conclusion

For the aforementioned reasons, the Court grants in part and denies in part Contestee's Conditional Motion for Partial Summary Judgment on Certain of Contestee's Counterclaims and denies Contestee's Conditional Motion for Partial Summary Judgment on Certain of Contestants' Claims." Any other relief not specifically ordered herein is denied.

Source: Order Granting in Part and Denying in Part Contestee's Conditional Motions for Partial Summary Judgement via [PDF]

Of the twelve voters identified in the preceding order, nine of the names can be found in Franken's Exhibit X, while just one is listed in Exhibit Y. The other two voters were mentioned as part of Franken's original counterclaim addressing 792 specific voters by name.

It's impossible to know exactly which way these twelve ballots will fall. It seems slightly more likely that this set will favor Franken based upon his specific identification of these voters, although Coleman has also identified nine of these voters. In the end, we know that twelve more ballots will be opened and likely counted, so the speculation is irrelevant.

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3 Response(s) to Franken's Amended List

2/24/2009 3:05:00 AM CT

thanks a lot for all this information!
A different Wayne
2/24/2009 5:13:13 PM CT

I think it would interesting if they would just open all of these contested ballots and see if the winner is different than the previous results. If not..., we could forego this waste of time, effort and money. If the result were different, then and only then, would we have to continue this debacle.
2/26/2009 2:31:25 AM CT

i like the other wayne's idea

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