Tags: coleman | franken | appeal

Franken Sees 'Death Throes' as Coleman Appeals

Monday, 20 Apr 2009 06:53 PM

By David A. Patten

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Former GOP Sen. Norm Coleman filed notice Monday that he will appeal Democrat Al Franken’s apparent victory in the Minnesota senate race, an action Franken attorney Marc Elias described as “the death throes of the Coleman legal action.”

Coleman advised the state Supreme Court late Monday afternoon that he will appeal, saying, “4,400 Minnesotans have not had their voices heard or their votes counted.”

The 4,400 figure presumably represents the number of additional absentee ballots that Coleman maintains should have been included in the vote count.

A three-judge panel ruled April 13 that Franken had defeated Coleman by 312 votes, out of nearly 3 million votes cast.

The Coleman campaign has maintained all along that election officials applied different standards in determining which absentee ballots should be counted. That variation, they maintain, amounts to a violation of the Constitutional requirement of equal protection under the law.

Monday’s notice was simply the legal fulfillment of Coleman’s prior pledges to continue his appeals.

“We do believe that the district court got it wrong on the law, and wrong because the Minnesota tradition in law is to enfranchise people,” Coleman legal spokesman Ben Ginsberg told reporters.

Franken lead attorney Elias shot back: “What we have now are the death throes of the Coleman legal action.”

Elias’ comments came during a conference call to reporters Monday evening, during which he added, “At some point you have to accept the reality of what it is.”

In a “Statement of Case” accompanying the notice of intent to appeal, Coleman’s attorneys contended they had “presented evidence of substantial disparities among election officials in how they applied the statutory standard. Indeed, the testimony of numerous elections officials demonstrated that whether an absentee ballot was accepted depended on where the voter lived. And the disparity in applying the standard affected not just a few ballots but thousands.”

Coleman presents five grounds for his appeal:

  • That the three-judge panel that heard the election lawsuit excluded evidence that would show different election officials applied various standards to their decisions on whether ballots were valid or invalid.

  • That the panel violated the voters’ constitutional protections of equal protection under the law when it declared Franken the winner.

  • That the panel was too restrictive in deciding which ballots to count, compared to the guidelines followed by city and county election officials. Coleman’s attorneys say this led to valid ballots being excluded from the count.

  • That the panel erred in refusing to order inspections in precincts where double-counting of ballots allegedly occurred. Several districts reportedly tallied more votes during the recount than the number of voters who showed up on Election Day.

  • That the trail court improperly counted 133 ballots from a Minneapolis Precinct. Those ballots mysteriously disappeared in Precinct 3-1, leading election officials to rely on machine tallies without the customary paper-ballot back up. Coleman’s team maintains those votes cannot be legally counted.

    Elias said that while Coleman attorneys have spoken of making sure all proper votes are counted, Coleman’s statement of case actually asks the Supreme Court to disallow, rather than include, many ballots.

    “When it comes to disenfranchisement, no one holds a candle to the legal team put together by former Senator Coleman,” Elias charged. “This is the same old, same old that the three-judge panel rejected. In fact, in many ways it’s the same old, same old that was rejected by the state canvassing board, and was rejected twice [in prior rulings] by the state Supreme Court.”

    Elias told reporters he will file a motion Tuesday morning asking the Supreme Court to expedite the review of Coleman’s appeal. He said all arguments and motions could be presented to the Court by the first week of May.

    Elias was asked if GOP Gov. Tim Pawlenty could be legally required to sign a certificate of election, should the Supreme Court rule that Franken is the winner.

    Elias replied that the governor’s authority over elections is essentially “ministerial.” Legally, he said, Pawlenty would have no authority recourse but to sign the certificate Franken needs to be seated as Minnesota’s next senator. Coleman’s attorneys have suggested an appeal to the U.S. Supreme Court is possible.

    Democrats are anxious for Franken’s election to be certified. It would leave them just one vote short of the number needed to stop any GOP filibuster.

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