Six New Court Filings, An Overview

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:


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 [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:

PLEASE TAKE NOTICE THAT at a time set by the Court at its earliest convenience Contestants will seek a ruling on this motion to remedy the double counting of votes for the U.S. Senate seat on certain ballots that occurred during the recount. This Motion will be based on the accompanying memorandum and all the files, records and proceedings herein.

Dated: March 2, 2009

Source: Notice of Motion and Motion for Order Declaring Recount Rule 9 Invalid as a Matter of Law via [PDF]

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:


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.




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.




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]
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.



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.


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 [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 above-captioned matter came before the Court, on February March 2, 2009, pursuant to Contestants' request to bring a motion to reconsider the Court's January 23, 2009 Order. Based upon the contents of the file, the Court makes the following:


1. Respondent's request to bring a motion to reconsider the Court's January 23, 2009, Order is DENIED.

Dated: 3/2/09

Source: Order Respondents Request to Bring a Motion to Reconsider the Court 012309 Order is DENIED-Judges Hayden/Marben/Reilly via [PDF]

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:


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.


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 [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 [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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1 Response(s) to Six New Court Filings, An Overview

3/5/2009 4:22:56 PM CT

I think Coleman's plan must be to drag the trial out so long that Franken never actually gets to take office, his term having run out during the deliberation.

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