MNSC Oral Arguments

The Minnesota Supreme Court convened today at 9 AM CT for the oral arguments associated with Norm Coleman's election appeal. The proceedings lasted approximately 69 minutes; upon their conclusion, each candidate's representation addressed the media on the second floor of the Minnesota Judicial Building.

The unabridged oral arguments follow as publicly provided by the Minnesota Judicial Branch and Twin Cities Public Television; low bandwidth audio from within the chamber is also available:

Video: .WMV, 01:08:47, 78.1 MB [Mirror:]
Audio: All files are .WAV, Part 1, Part 2, Part 3

Coleman's lead attorney, Joseph Friedberg began the hearing with what was supposed to be a ten minute introduction. Ten minutes turned into thirty as the five judge panel peppered Coleman's representation with questions and critiques. Despite the barrage of questions, the most telling exchanged occurred in the opening moments of the hearing:

Justice Page: We have one case for argument this morning, 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. Mr. Friedberg I see you have reserved 10 minutes for rebuttal.

Joseph Friedberg [Coleman]: With the court's permission your honor.

Justice Page: You may proceed when you are ready.

Mr. Friedberg: Morning and may it please this court; my name is Joe Friedberg, I represent [Norm Coleman]. Let me begin by saying that Minnesota is quite different from many states. We have problems within our institutions and when we do, we deal with them candidly and openly, we don't minimize them or sweep 'em under the rug to be discovered later by a federal court during 1983 litigation. That's why finding of fact 47 of the trial court is so surprising. Announcing that we are proud of rejecting only 0.5% of our total ballots cast in November is misleading at best. The only ballots that get rejected are absentee ballots; and our officials rejected 4% of them; 12,000 citizens who made good faith efforts to vote were disenfranchised for a variety--.

Justice Page: Did these 12,000 citizens comply with the absentee ballot voter requirements.

Mr. Friedberg: Many of them did substantially your honor, many of them did.

Justice Page: Substantially? What does that mean?

Source: Minnesota Judicial Branch [Mirror:]

The remainder of Mr. Friedberg's opening address revolved around Justice Page's seemingly rhetorical, yet legally unanswered question quoted above. The arguments meandered from justice to justice as Friedberg attempted to answer each question. Justice Anderson, Dietzen, Gildea and Meyer each took issue with the Coleman campaign's lack of evidentiary support with regard to their inconsistent application of the strict vs. substantial compliance argument. Justice Meyer prominently entered the fray with this exchange toward the end of Mr. Friedberg's initial rebuttal:

Justice Meyer: Where is evidence from the overwhelming majority of the counties and cities?

Mr. Friedberg: Every auditor we called, as I recall, made exceptions [to the admittance of absentee ballots]. Now I think we only called 26 or 27--.

Justice Meyer: And we have 87 counties, we are reviewing the work of a panel of three trial court judges here and they took evidence. Where is the evidence? Even as you called, as you said, you didn't even call witnesses from a majority of Minnesota's counties. You are asking us to presume, based on the testimony from a sampling of counties that that practice is applied to a majority of the counties.

Source: Minnesota Judicial Branch [Mirror:]

Friedberg responded by hesitantly referencing the assumed equality of populations within Bush vs. Gore to compare the "relaxed standard in Brower County with the unrelaxed standard in Palm Beach." Friedberg would then go on to state that "we have made our case" when "Plymouth kicks out 75 for signature mismatches and 31 counties in the state kick out none." I think Friedberg has a valid point from a mathematical standpoint if true; the Plymouth scenario presents a significant outlier and the aforementioned sampling of "26 or 27" counties represent a statistically sound sampling of all 87 counties. An inconsistent application of absentee ballot compliance in "26 or 27" counties would indicate to me, although devoid of legal rigor, that a problem existed, regardless of the remaining 50 or so counties. Whether the Coleman campaign adequately provided evidence to support this claim is vague at best.

Mr. Friedberg's time expired and Marc Elias, Franken's lead attorney, stepped up to the podium whereupon stating his name received his first question from Justice Page:

Justice Page: Council, before you get to that finding of fact, let me ask you a question. Hopefully council for the other side will be able to respond to this on the rebuttal. To the extent that the United States Senate will make the ultimate decision here, and the extent that they don't have to follow what we do. How do we issue an opinion, without it being an advisory opinion? In essence, do we have authority to do anything here?

Marc Elias [Franken]: Your Honor, this question was raised with the district court as to whether the court had jurisdiction. The court found, and we believe appropriately so, that the court had jurisdiction to determine who received the most lawful votes, even though the Senate has within its jurisdiction to decide who is seated.

Source: Minnesota Judicial Branch [Mirror:]

Elias would then go onto quote a South Dakota case involving Tom Daschle from his days as a Congressman. The referenced case was eventually linked to a Supreme Court decision stating that so long as the state process does not impede the US Senate, the state court is not "deprived of jurisdiction." The MNSC clearly has the power to declare a winner under Minnesota Statute, but the US Senate is under no obligation to act in accordance with any decision. The issuance of an election certificate for the sole purpose of full representation is irrelevant to the Supreme Court's present responsibility; an election certificate will apparently only be issued upon the thorough completion of the appeals process. The sole duty of the MN Supreme Court is to determine the candidate who received the largest number of legally cast votes, not to ensure federal representation or for any other purpose.

Elias would then go on to perform a small bit of math in the hopes of illustrating the futility of the Appellants' case:

Mr. Elias: From the March 31st order of the trial court, in which [the Coleman campaign] held that of all the rejected absentee ballots, the parties proved registration for approximately 650; 650 of all of the ballots presented to the court. That's voter registration, that's not all of the other requirements that appellants now have complaints about. But this is the most fundamental requirement, that the voter be registered. Of those 650, 351 were opened and counted. So the universe of ballots, properly plead and about which this trial took place, stands at 299. Now, obviously the margin separating the two candidates is 312. As a result, even if everyone of the three-hundred or so ballots, for which voter registration was proven, doesn't mean the witness was registered, doesn't mean that the certificate was completed, it doesn't mean that they only cast one ballot, but that they were at least registered. Even if all three-hundred of those were for the appellant, and even if all three-hundred met all other requirements, it would still be impossible for the appellants to make up the difference.

Source: Minnesota Judicial Branch [Mirror:]

The remainder of Elias' time was spent discussing the finer points of due process and equal protection. Elias contended that the discrepancies between each county served to "grease the joints" of election reporting. He later defended any breach of due process or equal protection on the grounds that the inconsistencies were not intentional or systematic and could therefore not be classified as in bad faith or fraudulent as required within Bush vs. Gore. Elias concluded his presentation by stating that election officials used "the different tools, available to them in the different jurisdictions" to "administer a fair election" within the confines of the law.

Mr. Friedberg then returned to the podium for the final fifteen minute stint and made three main assertions before the court adjourned. He first presented the varying processes by which each county voided an invalid ballot, thus potentially creating cases where the voter was registered, but their vote was not counted due to a failure to comply with another statutory requirement. Friedberg then reasoned that these registered voters should have their vote counted based upon the application of substantial compliance. Justice Page then questioned the lack of evidence presented by the Coleman campaign specifically relating to these uniquely registered and rejected voters. Friedberg countered by stating that the ECC would not accept the evidence despite his effort, to the point of "test[ing] the trial court's patience."

Justice Anderson then explicitly asked Friedberg if their were any instances of fraud. Friedberg responded by simply stating "absolutely not" and added that there was no fraud of any kind; election, voter or otherwise.

During Elias' statement, Justice Deitzen began to muddle through the messy statute associated with the challenging of ballots; Deitzen would later finished his line of questioning with Friedberg at the helm. Although the statute is not definitive, the application, as implement by the Attorney General during the recount, precluded either campaign from challenging the inclusion of any absentee ballot. This meant that once an absentee ballot was included by an election official for any reason, it would be opened and counted. This practice differed from the in-person portion of the recount in which the campaigns were allowed to challenge the election officials' ruling.

Upon conclusion of the hearing, Norm Coleman and Joseph Friedberg jointly addressed the media:

Video: .WMV, 09:37, 158MB

The general gist of Coleman's address was that there are voters who have not had their vote counted, and are therefore disenfranchised; until they are enfranchised the campaign will continue to represent the interests of these 4,400 voters. This statement seems to align with Friedberg's opening remarks. Mr. Friedberg cited Minnesota's Judicial history of addressing all problems before they reach the federal level. Drawing from this prior statement it seems logical to conclude that if the MNSC does not address all of the problems, the Coleman campaign will seek federal relief.

Marc Elias then addressed the media after the Coleman procession exited the foyer:

Video: .WMV, 04:19, 71.1MB

Marc Elias' brief address was followed up by a few soft questions from the media. Elias basically reiterated that he was confident of a Franken victory, but that he had no specific timeline in mind for a Supreme Court decision.

If I had to guess at a timeline I would say by July 4th, but I really have no idea; the whole ordeal could drag out even further depending on what the MNSC concludes. Coleman's best case scenario is for the ECC to resume the trial with different rules and Franken's best case scenario is an outright win. Its also possible for this to end up in federal court as discussed above. I doubt very much will happen within the next two weeks.

I also stopped by the Ramsey County Court House to obtain some other court documents that I'll hopefully be able to post sooner rather than later.

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2 Response(s) to MNSC Oral Arguments

john gallaher
6/2/2009 5:48:49 PM CT

Norm Coleman and Tim Pawlenty have prevented Minnesota from having equal representation in the United States Senate this year. Clearly, Coleman and Pawlenty don't believe in the American, democratic electoral process which has enabled them to act as public servants. Why? Neither will ever be elected again.
CT Reader
6/2/2009 6:31:54 PM CT

I totally agree! Can we please just stop the Coleman madness?

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