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The election contest court adjudicating Norm Coleman's challenge to the 2008 Minnesota Senate election has finished and published its order (32 pages, almost half of it exhibits) this afternoon. It calls for up to 400 absentee ballots to be opened and counted on April 7 and otherwise dismisses all of the parties' legal arguments that are specifically relevant to absentee ballots.

Last I looked, there's still nothing on the official court website. I'm told it should be posted at that site as soon as the clerk gets it, though.

Nef, in comments below, says The Uptake has the PDF of the Order (same thing I'm reading) up on the web at . I think (s)he's right.

I put this up as I was reading, so it's a little bit discombobulated; sorry.

The title of the document is "Order for delivery of ballots to office of the Minnesota Secretary of State for Review by the Court."

The syllabus at the top of the order commands:

  1. That the absentee ballot materials for a bunch of voters listed in the (long) Exhibits A-C be delivered to Ritchie's office;
  1. That the ballots determined by the Court to be legally cast will be opened and counted on April 7--one week from today;
  1. That this Order go out to the county auditors;
  1. Ritchie's office (a.k.a. "OSS") will be opening, sorting and counting the legally cast absentee ballots in open court;
  1. Memorandum (lotsa reading ahead--sorry) attached; and
  1. "Any other relief not specifically ordered herein is DENIED."

Barring something really shocking from that count next week, I think #6 means Al Franken is the Junior Senator from Minnesota.

Updated: As asserted in numerous vituperative comments below from Kossack underwhelm, it appears that I misinterpreted paragraph 6 of the syllabus quoted above. The "DENIED" language has appeared in several prior orders from this court; it does not indicate that the court will issue no further relevant orders or that--oddly--any "other relief" has in fact been "DENIED." I'm not accustomed to finding (what underwhelm terms) "vestigial" and "meaningless" language in court orders in cases I litigate; my apologies.


Adding in a point from Kos's front-page post (subject to the above correction due to underwhelm's comments):

Update II: Franken attorney Mark Elias thinks the order doesn't deal with the MN "lost 133" ballots that were never found, nor the issue of double-counted ballots. So a final order might have to wait until after the April 7 counting.

I don't understand this. The Order specifically says "Any other relief not specifically ordered herein is DENIED"--which would, I presume, apply to Franken's claims, or indeed any claims regarding the "lost 133" or the double-counting.

Elias certainly knows this case a lot better than I do, but I think he's wrong on this point. I think this Order resolves those issues by ignoring them; I think the sentence I just quoted means that the certified count will not change based on the Minneapolis 133 or the double-counting fiasco. And there's no need for a further order to say that.

Updated: On second thought, Elias is probably correct.


Now, to the Memorandum--and we might all suffer because I've only read a few of WineRev's diaries, and so I don't know all of the ins and outs of this thicket of legal issues.

Recounting of facts (nicely done but not worth much time) takes up pages 3-6 of the Memorandum. Funny line my coworker just saw in this section: "The trial evidence comprised exhibits offered in three-ring binders that, when stacked, equaled over 21 feet of paper copies." Aww. Let's hear it for those hard-working judges and (I hasten to add) judicial clerks!

Then they talk about Coleman's case on pages 6-8.

Roman numeral III of the Memorandum is "The Court Undertook a Thorough Review of each Absentee Ballot."

It's a long discussion (pp. 8-17) of the legal issues being contested. I'm sure there are important points being made in it, but I'm skipping it for the moment (see next portion of diary below for slowly developing synopsis)....

On p. 17, roman numeral IV is "The Court Orders 400 Absentee Ballots to be Delivered to the Office of the Minnesota Secretary of State for Review by this Court."

The next paragraph states that these ballots

include: (1) absentee ballots the Court believes should be opened and counted based upon a thorough review of the evidence and a finding that the voter complied with Minnesota law, (2) absentee ballots where relevant information was redacted or illegible, and (3) absentee ballots where the Court otherwise requires the original in order to make a finding. To be clear, not every absentee ballot identified in this Order will ultimately be opened and counted.

Upon receipt, the Court will review the absentee ballots and absentee ballot return envelopes.  The Court will then determine which of those absentee ballots shall be opened, sorted and counted in open court. The opening, sorting and counting of absentee ballots will occur on April 7, 2009.

That's it. Then it's a bunch of pages of Exhibits.

I'll try to go back through Part III to tease out the legal holdings.


Okay, first I'll just copy in the section headings in Part III:

a. As a Threshold Consideratio, the Court Required Evidence that the Individual Who Cast an Absentee Ballot was a Registered Voter

b. As a Threshold Consideration, the Court Required Evidence that the Individual Who Cast an Absentee Ballot Did Not Otherwise Vote

c. The Voter Must Submit an Absentee Ballot Application

d. The Voter Must Complete and Sign the Absentee Ballot Envelope

e. The Voter's Absentee Ballot Must be Witnessed by a Registered Minnesota Voter or Notary Public

Those are the subpart headings. (Tsk tsk from this lawyer: proper outline form is roman numeral (III) and then capital letter (A), not lower-case. Okay, proofreading Nazi mode off.)


If you're interested, there are four exhibits: A through C are all spreadsheet printouts of (presumably absentee) voters--columns are county, city, first name, last name.

A is 10.5 pages of names and locations (phew--my name isn't in there).

B has only six names, from Carver, Scott and Stearns counties (all exurban).

C is a single woman from Dakota County.

D isn't a spreadsheet at all; it's "County Procedures" for "Shipping Rejected Absentee Ballots to the Office of the Minnesota Secretary of State." Very important, but not exactly juicy for Kossacks to read.


Big paragraph on pp. 7-8:

Contestants' [Coleman's] counsel argued that the Court should presume a voter is registered without evidence to the contrary, that a witness with a Minnesota address is properly registered, that a voter with an absentee ballot completed an absentee ballot application, and that the voter's signature is genuine. However, when the counties or a party places an absentee ballot in issue and that ballot has been carefully reviewed but continues to lack legally [sic] sufficiency, the Court can make no such presumptions.  Further, Contestants' presumptions are not reasonable in light of the small number of absentee ballots at issue in this election contest and the fact that these absentee ballots have already been carefully reviewed as many as three times by state and local election officials.

I think that's a lot of Coleman's case being fed into the paper shredder.


Here's the StarTribune's take (after I posted this I read NoisyWithdrawal's earlier comment below quoting it--so credit to him/her):

Court to count up to 400 ballots in Senate recount trial

In a potentially decisive ruling, a panel of three judges ordered up to 400 new absentee ballots opened and counted, far fewer than Norm Coleman had sought in his effort to overcome a lead by Al Franken.

Line from coworker: "Say good-night, Norm."

Originally posted to Rieux on Tue Mar 31, 2009 at 01:40 PM PDT.

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