Former GOP Sen. Norm Coleman’s legal team kicked off its election appeal Thursday to the Minnesota Supreme Court, filing a wide-ranging brief that contends at least 4,800 more votes should have been counted by the three-judge panel that declared Democrat Al Franken the winner by 312 votes.
Coleman attorney Ben Ginsberg said the election panel wrongly permitted different standards to be used in the evaluation of which absentee ballots should be counted.
“It’s important that there not be one set of rules on Election Day with another imposed after the game is played,” Ginsberg said.
Some ballots, Coleman’s attorneys say, were subjected to a “substantial compliance” standard, meaning they complied with most but not all of the exact stipulations of the law. Ginsberg says that is the measuring stick officials traditionally use in Minnesota elections.
The ballots reviewed by the three-judge panel, Ginsberg says, were subjected to a different standard called “strict compliance.” That meant any deviation from the letter of the law in how the ballot was completed could lead to its exclusion.
“That standard is wrong,” says Ginsberg, “because it was not applied by any Minnesota jurisdiction in counting their votes on Election Day, and it also runs counter to Minnesota’s rulings in the past, and its tradition of enfranchising voters, rather than disenfranchising voters -- which is what the trial court did here.”
Coleman’s legal team says counting different ballots different ways also amounts to a violation of the Constitutional guarantee of equal protection under the laws.
Ginsberg says the use of different standards sets up “a real conundrum” for the state’s highest court in how to fix the problem. The brief says the state Supreme Court could resolve it in one of two ways.
One approach would be to apply the strict compliance standard to all absentee ballots cast in the state. The Coleman team does not favor that remedy, however, because it could lead to the exclusion of perhaps thousands of ballots cast for both candidates.
The other solution, Ginsberg says, is for Minnesota’s Supreme Court to order the easier, substantial-compliance standard be applied to all ballots. This would result in the counting of at least 4,800 more votes, according to Ginsberg.
The brief filed Thursday lays out the basis of Coleman’s appeal over 62 pages. It also asks the court to address the alleged double-counting of ballots in some precincts. And it asks that 133 ballots missing from a Minneapolis precinct be rejected.
Election machine totals indicate those ballots were cast, but there are no paper ballots to prove it. Presumably those ballots were somehow lost.
The election panel decided to include the votes even minus the paper backup, rather than risk disenfranchising voters. The majority of those votes went to Franken.
The brief filed today by Coleman’s attorneys essentially repeats objections raised at earlier stages of the election contest. In their April 13 decision declaring Franken the winner, the election-contest judges wrote: “The overwhelming weight of the evidence indicates that the Nov. 4, 2008, election was conducted fairly, impartially and accurately.”
The Franken legal team has taken the same position, and Ginsberg was asked Thursday why he thought the state Supreme Court would overturn the election panel’s ruling.
“When we got to the contest court, these judges had a much more restrictive view of what their authority was,” he said. “The Supreme Court is the ultimate word in Minnesota on the scope of what can be looked at it. Therefore it is really a fresh look that the Supreme Court takes on these issues, under the way Minnesota law works.”
One course of action not suggested by Coleman’s lawyers is holding an entirely new election – essentially an electoral “do-over.” A Coleman spokesman tells Newsmax there is no provision in Minnesota law for that to occur.
Several steps remain before the state Supreme Court can hear oral arguments. Franken’s counterargument is due to the Court by May 11. Coleman’s attorneys will have an opportunity to file a rebuttal to the points that Franken’s attorneys raise on May 15. The actual arguments before the Supreme Court are scheduled for June 1.
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