Tuesday brought the release of six new court filings, all of which were originally filled on Monday; the day Coleman "provisionally" rested his case. In "provisionally" resting, Coleman sought to establish a degree of leniency that would allow for the presentation of additional evidence. The Election Contest Court issued this order, in its entirety:
The above-entitled matter came before the Court upon Contestants' request to
submit into evidence affidavits and declarations of individual voters as part of
Contestants' offer of proof, The Court makes the following:
ORDER
1. Contestants' request is DENIED.
2. The Court granted Contestants leave to delay the time to rest their case until March
4, 2009 at 12:00 p.m, That delay was granted for the purpose of allowing
Contestants to serve subpoenas upon county and municipal election officials
requesting certifications pursuant to Rule 803(10) of the Minnesota Rules of
Evidence as described in the Court's Order of February 26,2009 in response to
Contestants' motion in limine. The Court did not grant Contestants leave to
submit affidavits or declarations of individual voters, The Court reaffirms its
earlier finding that Contestants are afforded additional time only for the limited
purpose of obtaining certifications in accordance with the Court's Order of
February 26, 2009.
Dated this 2nd day of March, 2009.
Source: Order on Contestants Request to Submit Voter Affidavits via MNCourts.gov [PDF]
While the Coleman campaign was not granted permission to enter new evidence on any voter, they will be allowed to enter evidence pertaining to the yet to be searched absentee ballots; as was commissioned on February 26th by the ECC. While the Coleman campaign didn't get everything they wanted, they walked away with a partial victory.
The Coleman campaign then moved to remedy the double counting issue; their memorandum follows:
Their motion is pretty vague, but a look into their accompanying memorandum reveals their intentions. I've excerpted some pertinent passages from the seven page memorandum below:
INTRODUCTION
The Secretary of State's Office created Rule 9 as a means of ensuring that the
parties would have access to the original ballot, rather than the duplicate, because the
original ballot was the best evidence of the voter's intent during the recount.'
Representatives of the Coleman for Senate campaign agreed to Rule 9 under the mistaken
assumption that Minnesota precinct judges would precisely follow the requirements of
Minn. Stat. § 206.86, subd. 5, as well as training received by such judges from the
Minnesota Secretary of State Election Division, and properly label all originals and
duplicates. Unfortunately, it is now clear that in several precincts throughout the state of
Minnesota, including numerous precincts in Minneapolis, the election judges
inadvertently failed to mark all of the duplicated ballots, thereby making it impossible to
retrieve them and leading to the double-counting of ballots during the Canvassing
Board's recount.
...
ARGUMENT
I. MINNESOTA LAW SETS FORTH SPECIFIC PROCEDURES FOR THE
DUPLICATION OF DAMAGED BALLOTS.
Minnesota law requires the accurate creation of duplicate ballots in circumstances
in which the original ballot is unable to be read by the tabulation machines (such as tom
and damaged ballots and UOCAVA/overseas ballots). Minnesota law also clearly
requires that only the duplicate be counted, while preserving (but not counting) original
ballots. Minn. Stat. § 206.86, entitled "Counting Electronic Voting System Results,"
provides the procedure for the election-night counting of votes where a precinct uses an
electronic voting system.
...
II. MINNESOTA LAW CREATES A PRESUMPTION THAT DUPLICATE
BALLOTS WERE MADE AND COUNTED BY VOTING MACHINES ON
ELECTION NIGHT.
...
Additionally, the record in this matter contains the election day pre-registered
voter sign-in rosters, same-day registration rosters and UOCAVA rosters, as well as
machine tapes from election night, all of which evidence the number of persons actually
voting on election night. See Exhibits C56-60, C86-90, C94-98, C102-105, C110-113,
C117-120, C138-141, C146-149, C153-156 and C160-163. The record in this matter also
evidences the number of ballots actually counted during the recount, which numbers
were certified by the Minnesota State Canvassing Board. See Exhibit C603 (introduced
during the testimony of Minnesota Elections Director Gary Poser).
A comparison of these exhibits demonstrates that, in 10 Minneapolis precincts, the
number of votes counted during the recount exceeded the number of persons actually
casting ballots at those precincts on election night, as follows:
[Note: The "VFA VOTERS PRESENT" column has been added, which uses data collated from the SOS website.]
VOTERS RECOUNT [VFA VOTERS]
PRECINCT PRESENT BALLOTS [PRESENT]
Minneapolis W11-P8 2857 2873 2851
Minneapolis W12-P8 2923 2936 2922
Minneapolis W10-P2 2079 2087 2076
Minneapolis W11-P7 1996 2004 1995
Minneapolis W7-P7 1849 1865 1856
Minneapolis W9-P2 1712 1718 1712
Minneapolis W10-P4 1193 1197 1192
Minneapolis W2-P5 2102 2104 2100
Minneapolis W8-P10 2214 2217 2215
Minneapolis W13-P1 1916 1921 1921
Where there are more ballots counted in the recount than voters who cast ballots
on election day, such excess ballots are illegal and, therefore, cannot be certified by this
Court to constitute legally cast ballots. See Johnson v. Tanka, 154 N.W.2d 185, 187
(Minn. 1967) (noting that where there are more ballots than voters who voted on election
day, the votes cast over the number of voters "cannot be said to be legal."). "The
outcome of an election should rest upon ballots received according to law and should not
be determined by illegal votes." Id.
III. THE PROCESS UNDER RULE 9 FOR COUNTING ORIGINAL BALLOTS
WHEN THE NUMBER OF ORIGINAL AND DUPLICATE BALLOTS
DOES NOT MATCH DID NOT COMPLY WITH MINNESOTA LAW.
...
When the campaigns agreed to Rule 9, they did so with the understanding that the
original ballot would be the best evidence of intent of the voter under Minn. Stat. §
204C.22 and the presumption that local election officials had created duplicate ballots
and properly marked all duplicate and original ballots, as required by Minnesota law.
Neither their agreement nor Rule 9 can prevent this Court from applying Minnesota law
in the face of clear evidence that Minnesota law was not uniformly followed in the
correct marking of duplicate ballots.
First and foremost, it should be noted that Rule 9, on its face, does not mandate
that originals for which no marked duplicates were found during the recount should be
counted and included in the recount totals, The language relates to "sorting" and not
"counting." Thus, Rule 9 complements Minnesota law by enabling a comparison (via
"sorting") of the marked original ballots (found in the folder containing originals from
which duplicates were made) to the corresponding marked and numbered duplicates.
CONCLUSION
For the reasons set forth above, Contestants respectfully request that the Court
issue an order (a) declaring Rule 9 as applied during the recount in precincts in which the
number of originals exceeded the number of marked duplicates to be invalid as a matter
of law and (b) directing that pursuant to Minn. Stat. § 206.86, subd. 5, all ballots in those
precincts which were challenged for the lack of a corresponding duplicate shall not be
counted in determining which party received the highest number of legally cast votes.
For the Minneapolis precincts at issue this simply requires that the double-counted votes
be subtracted from the vote total. For the remaining precincts at issue, an inspection
should be ordered or the Court should revert to the election night vote totals.
Dated: March 2, 2009
Source: Memorandum in Support of Motion for an Order Declaring Recount Rule 9 Invalid as a Matter of Law via MNCourts.gov [PDF]
The basis of Coleman's argument seems to rest upon the improper application of Rule 9 [pg 7] as in pertains other Minnesota statues. In seeking this proof, they reference a number of presented Exhibits, Minnesota Statutes and a few other applicable court decisions. The Coleman campaign has requested that every voter-to-votes anomaly, involving unmarked duplicates, be invalidated; in making this request, they have placed the burden of proof upon the court and local election officials. Without presenting substantive evidence for each and every scenario, the Coleman campaign's request will likely fall on deaf ears.
Using the voter-to-vote paradigm, there are 357 precincts in which there were more votes cast than eligible voters. If the Coleman campaign were serious about correcting the double counting errors, wouldn't it make sense to present evidence representing a more equitable set of precincts, rather than a select few from Hennepin County. It's also worth mentioning that the voter totals presented in the proceedings memorandum do not match those same totals provided by the Secretary of State's website. There are two possible explanation for this discrepancy, either (a) the data before December 9th (when I accessed the page) was different, or (b) the Coleman campaign failed to collate the proper data. You can make your own determination, you have all the information necessary.
The next document is blatant but without a lot of context, go ahead and read the order first, then I'll fill in the blanks:
The referenced order pertains to Coleman's request to have ballots and other election materials available to the court. I wrote a fairly lengthy analysis on Coleman's request and the aforementioned order that the above order references.
Coleman requested, before the trial even started, that 586 votes be inspected for potential double counting errors. The ballots were not referenced by name, but the county was indicated. The Coleman campaign is essentially asking the court to reconsider his prior request, in which he asked for these 586 to be made available for further inspection by the court. In the end, the ECC stood by their previous decision.
The next document deals with the sanctioned levee against Coleman's representation for the botched disclosure of evidence in relation to Pamela Howell's testimony. The motion was originally put forth by the Franken campaign and requested that Pamella Howell's testimony be re-stricken from the record. A few selected excepts from the latest order are presented below:
The above-entitled matter came before the Court upon Contestee's Motion to
Strike. 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:
ORDER
1. Contestee's Motion to Strike is DENIED.
2. Contestants are hereby ORDERED to pay costs in the amount of $7,500 pursuant
to Rule 37.02 of the Minnesota Rules of Civil Procedure, payable to the Court
within three (3) days of this Order.
3. The Court's Memorandum, filed herewith, is incorporated herein.
4. Any other relief not specifically ordered herein is DENIED.
Dated this 2nd day of March, 2009.
MEMORANDUM
On February 25,2009, Contestants called Minneapolis election judge Pamela
Howell to testify on Contestants' claim that certain ballots were counted twice during the
recount due to such ballots not having been marked as "duplicates." (See Notice I2(a).)
During cross-examination, Contestee elicited testimony from Howell that she had
provided a document to Contestants' counsel that had not been disclosed to Contestee
during discovery. Contestee moved to strike Howell's testimony. Ruling from the
bench, the Court excused Howell and agreed that her testimony should be stricken.
On February 26,2009, the Court reconsidered its ruling of February 25,2009, and
vacated its order to strike Howell's testimony based on a finding that Contestants' failure
to disclose Howell's statement was inadvertent and not in bad faith and that Contestee
would not be substantially prejudiced by allowing Howell to testify, (Order February 26,
2009.) Howell was re-called to the witness stand on February 27,2009 and her testimony
reinstated. On cross-examination, Howell began testifying about email communications
between herself and Contestants' counsel. Howell's statement was specifically
referenced in emails dated January 6,2009 and January 28,2009. Contestee renewed his
motion to strike Howell's testimony and further moved to strike the underlying claim to
which her testimony relates.
...
In lieu of striking the witness's testimony or the underlying claim, the Court
hereby imposes upon Contestants' counsel the obligation to pay the court costs incurred
over the three trial days during which the Court addressed the issue of Howell's
testimony. Contestants had an ongoing duty to abide by the discovery roles, as the Court
has discussed both on the record and in its previous orders. (Order February 26,2009).
Contestants' counsel were not "substantially justified" in withholding Howell's statement
or the emails referencing the same and the award of expenses is not "unjust" under these
circumstances. See Minn. R. Civ. P. 37.02. Due to the seriousness of the violation, the
Court imposes costs associated with the delay caused by this non-disclosure, including
the expenditures for personnel, lodging, mileage, parking, per diem meals, building
security, space/rent, and other expenses, for a total fine of $7,500, payable to the Court.2
In the event this sanction fails to deter future conduct on the part of Contestants' counsel,
the Court will not hesitate to impose harsher sanctions, up to and including dismissal.
Source: Order on Contestees Motion to Strike via MNCourts.gov [PDF]
Basically the Coleman campaign was fined $7,500 for their failure to disclose proper information and Franken's motion was denied. Ms. Howell's testimony will still factor into the ECC's decision.
The next filing is actually a letter written to the Election Contest Tribunal by Coleman attorney James Langdon:
Re: In the Matter of the Contest of General Election held on November 4,2008, for
the purpose of electing a United States Senator from the State of Minnesota
Cullen Sheehan and Norm Coleman v. Al Franken
Second Judicial District Case No. 62-CV-09-56
Dear Judges Hayden, Marben and Reilly:
I write to bring several authorities from other jurisdictions regarding potential remedies in
election contests to the Court's attention. As I noted in my February 27, 2009 letter, a
substantial number of cases from other jurisdictions apply proportionate reduction, on a precinct
by precinct basis, as a remedy when a party has proven the existence of illegal votes. The
Court may wish to review, among other cases, Hammond v. Hickel, 588 P.2d 256 (Alaska
1978); Huggins v. Superior Court, 163 Ariz. 348 (1990); Singleterry v. Kelly, 242 Cal. App.2d
611 (1966); Hileman v, McGinness, 316 III. App.3d 868 (2000); and Briggs v. Ghrist, 28 S.D.
562 (1912), for discussion of that remedy and the impossibility of adequately determining for
which party an illegal vote was cast. Other cases are discussed at 26 Am. Jur.2d Elections
§ 357.
Some courts have held that when the number of illegal votes exceeds the margin
between the candidates-and it cannot be determined for which candidate those illegal votes
were cast-the most appropriate remedy is to set aside the election. In that regard, the Court
may wish to review the following cases addressing situations in which the number of illegal
votes is large and the margin of victory small: Marks v. Stinson, 19 F.3d 873 (3d Cir. 1994);
Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978); Hardeman v, Thomas, 208 Cal.App.3d 153
(1989); Mead v. Sheffield, 601 S.E.2d 699 (Ga. 2004); Akizaki v. Fang, 461 P.2d 221 (Ha.
1969); Adkins v. Huckabay, 755 So.2d 206 (La. 2000); McCavitt v. Registrars of Voters of
Brockton, 434 N.E.2d 620 (Mass. 1982); and Ippolito v. Power, 241 N.E.2d 232 (N.Y. 1968).
Dated: March 2, 2009
Source: Letter to Judges from James Langdon dated 3/2/09 Regarding Potential Remedies via MNCourts.gov [PDF]
Within the letter Mr. Langdon attempts to establish that the margin separating the candidates is significantly small enough to render the entire election invalid based upon the number of illegally counted ballots. I looked through a fair number of the referenced court decisions and it appears as though their is precedent for invaliding an election, although nothing on the same level as a US Senate election. The most interesting case I found was Santucci v. Power [25 N.Y.2d 897, 252 N.E.2d 128, 304 N.Y.S.2d 593 (1969).] in which a New York court affirmed an order directing a new election on the basis of 640 irregularities, with a margin of 95 votes.
In researching these court document I stumbled upon a few mathematical models for measuring election closeness; I've got a write up planned, for later this week, to fully illustrate these models as they relate to the Minnesota Senate Contest.
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Six New Court Filings, An Overview
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