There are a number of new filings today in Coleman v. The Universe. We'll break them down to get an idea where the election contest is heading.
[Note: The "Finally" section was updated at 6:50 pm PST]
First, the Court issued a decision on the individual voters' petition to have their absentee ballots counted. See Order Granting in Part and Denying in Part Petitioners Motion for Summary Judgment. The Court ruled that some of the voters have demonstrated they met all the requirements in the MN Statutes to have their votes counted, specifically:
- That they were eligible to vote in the precinct in which they submitted the ballot.
- That they submitted an application for an absentee ballot.
- That they signed the absentee ballot application or it was not required by law to be signed (for example, an overseas military request).
- That they were registered to vote or included a valid registration card with their absentee ballot.
- That the name and address on the absentee ballot return envelope matched the absentee application.
- That the voter properly completed the certificate of eligibility on the back of the absentee ballot return envelope.
- That the certificate of eligibility was signed by a registered MN voter or a notary public, certifying that the ballot was originally unmarked; that it was completed by the voter in secret, or, if they needed assistance, at their direction; and that the voter was previously registered or provided lawfully acceptable proof of residence.
- That the voter had not voted in person and had not already submitted an absentee ballot that had been counted.
For the voters that demonstrated they met all of these requirements, the Court ordered that their absentee ballots be set aside and included in the final count to take place at a time they will determine in the future. For one voter that demonstrated her registration card may be in the secrecy envelope, the Court ruled that envelope should be set aside to later determine if the registration card is in fact in the secrecy envelope, and if so, if all requirements are then met. For all other voters that did not offer sufficient evidence to convince the Court that they had met all requirements to have their votes counted, the Court ruled that they either need to come up with the evidence, or their votes will not be counted.
With this decision, the Court demonstrated that they intend to be sticklers for the letter of the law. We can reasonably expect that the Court will apply the same strict standards to the ballots submitted by the Coleman and Franken campaigns: if the campaigns offer sufficient evidence to convince the Court that all requirements have been strictly complied with (or that any shortcomings were caused by an election official) then the Court will count the ballot; otherwise, they will not.
Second, the Coleman camp has indicated it is not done yet arguing about "equal protection". See Contestants' Memorandum of Law in Opposition to Motion in Limine to Exclude Testimony of Professor King Banaian. Coleman would like to call an "expert witness" to testify that the variation in the rejection rate of absentee ballots from one county to the next COULD NOT POSSIBLY be caused by random chance, and therefore the variation MUST ABSOLUTELY have been caused by varying standards. This witness in my opinion has no merit, for the following reasons:
- First, it is impossible to prove that the variation in rejection rates COULD NOT POSSIBLY by caused by random chance. You can prove that the variation was UNLIKLEY to be caused by random chance, for example, that the probability it was caused by random chance is only 0.0001%, but you can never prove that it is IMPOSSIBLE. If their "expert" witness intends to testify it is "impossible", then the court should show him the door.
- Second, even if the expert can show that the variation was unlikely to be caused by random chance, that still does not tell us what caused it. The Coleman campaign wants the Court to conclude that it MUST HAVE BEEN CAUSED BY THE ELECTION OFFICIALS, but that does not follow. It may have been caused by many possible factors, for example, that in certain areas voters have more trouble following the instructions (less educated, do not speak English as well, etc.). Because the conclusion the Coleman campaign wants the Court to draw does not follow from the expert's testimony, his testimony is irrelevant and should be excluded.
- Next, there is what is known as the "best evidence rule". If you want to prove different counties applied different standards, you simply pull out ballots that are similar in all relevant aspects but were treated differently in different counties. This is the best evidence of different standards. In the courtroom, only the best evidence is admissible. Because Coleman's proposed expert is not the best evidence, he should be excluded in favor of the actual best evidence--the ballots themselves.
- Finally, the standards by which the ballots are judged is specified by MN Statutes, and the Court has clearly indicated those are the standards they intended to follow. The Coleman campaign wants to argue that if one mistake was made with one ballot, then that mistake must be applied to all ballots. There is no law to support this point of view, and in fact, that would turn the election into an anarchy with a complete lack of standards (that "one error trumps all") and that is not supported by the law. Expect that the Court will reject the "equal protection" argument and exclude this witness, just like they did when they issued their last order limiting the grounds on which the Coleman campaign was allowed to introduce ballots into evidence (only to demonstrate that the voter complied with MN Statutes). The one caveat is the signature matching issue. As the trial has shown so far, the election officials were asked to subjectively compare the signatures on the absentee ballot application to the signature on the return envelope and reject the ballot if the signatures did not match. The judges are well aware of this issue, and will attempt to address it by applying some reasonable and consistent standards in the ballots they allow to be counted. Otherwise, expect that Coleman's "equal projection" argument will be again be rejected.
If the Court does allow the expert to testify, expect that (a) the Franken camp will offer a rebuttal expert who will raise some of the issues described above and (b) the Court will give Coleman's expert no weight, essentially disregarding his testimony. (In fact, that is in some respects the safe play for the judges--to allow the testimony then give it no weight. Then the Coleman campaign cannot argue on appeal that their expert should have been allowed to testify.)
Third, on January 23, Coleman requested that the individual voters' Petition to have their votes counted should be certified as "class action" and include all 11,000 rejected absentee ballots. See Memorandum of Law - Keeping Case Class Action. Today, the the 64 individual voters filed an opposition. See Petitioners' Memorandum of Law In Opposition to Motion for Class Certification. Its not clear why the Petitioner's filed this opposition, since the Court already substantially denied the request for class certification when it barred the inclusion of all 11,000 rejected absentee ballots, and again when it denied a request by additional voters to intervene (see Order on Motion for Leave to Intervene). Nonetheless, the opposition doesn't hurt, and it has good grounds: specifically that having one's vote count is an individual right, and that MN Statutes only allow individuals to contest an election and do not have a provision for class certification. Just to make this issue clear, the Court will likely issue a formal order denying Coleman's request for class certification.
Finally, at the end of the day yesterday the judges indicated that Monday would be "motion day". This announcement was made in response to Franken's counsel complaining that the Coleman camp was wasting time covering ballots that clearly had valid reasons for not being counted. Today, The UpTake's twitter feed included a link to an Order Establishing Hearing on Motions (this order is not yet listed on the court's website). This order asks the parties for arguments on 19 situations that have come up but the Court has not yet decided how to handle, for example, a box left unchecked on the return envelope. The list is too long to repeat here, but easy to read in the order itself. The order also indicates that hearing on these issues, and on Coleman's motion for class certification and Franken's motion to exclude Coleman's expert will be held on Thursday. Expect the Court to issue one or more orders soon after this in an effort to speed up the trial.
P.S. I personally would not be surprised if the MN Supreme Court simply sits on Franken's request for an immediate Certificate of Election. Reason: they will eventually deny the request, however, as soon as they issue the decision, Franken will run off to either the MN Legislature, asking them to change the law, or the Senate, asking to be seated any way. The net result is that the court will look like it is slow and unable to handle the election contest. On the other hand, as long as the Court sits on the request, Franken is frozen in place and can't go anywhere. I suspect the Supreme Court judges fully realize this and are in no hurry to let Franken pull an end run. But I could be wrong. Time will tell :-)
P.P.S. To everyone who thinks this is taking too long, my karate instructor had a saying: If you don't like the way the judges decide it, you should a' knocked the other guy out.