Democrat Al Franken’s legal team shifted from defense to offense Tuesday, moving forward despite a request by GOP Sen. Norm Coleman’s legal team that the Minnesota senate election be declared invalid and the results tossed out.
The suggestion that the election be invalidated came in a letter from Coleman attorney James K. Langdon to the three-judge panel that is hearing the election lawsuit filed by Coleman, which contests the findings of the statewide recount. That recount concluded with Franken enjoying a 225-vote lead.
When the number of improperly counted votes exceeds the margin separating the two candidates, Langdon stated, invalidating the election becomes an option. He wrote, “Some courts have held that when the number of illegal votes exceeds the margin between the candidates – and it cannot be determined for which candidate those illegal votes were cast – the most appropriate remedy is to set aside the election.”
Langdon cited a host of cases to support his contention that because it would be impossible to determine the actual winner of the Nov. 4 election, the results should simply be ruled invalid.
Franken attorney Marc Elias replied that throwing out the results of an election has only been done in the case of massive fraud or irregularities. The panel has not found that the Minnesota recount exhibited such fundamental problems, and Elias says the panel lacks the authority needed to order a new election.
Langdon’s letter came as the Coleman team rested its case. Because Langdon’s letter did not take the form of a legal motion, the panel will not have to issue a formal response.
Franken’s lawyers immediately moved forward on Tuesday, putting individual witnesses on the stand to testify that their votes for Franken were wrongly rejected as invalid.
Franken’s attorneys hope to persuade the panel to accept so many new Franken votes that even if Coleman is later awarded additional votes, he still could not surpass Franken. Franken’s tactic of presenting voters’ concerns on a case-by-case basis has been somewhat successful, with his unofficial lead now at 261 votes.
Lead Coleman attorney Ben Ginsberg expressed confidence in how the trial is going so far.
“We think we have made a very convincing case,” he told the Star-Tribune. “We have put enough votes in play to make Norm Coleman the U.S. senator.”
Legal scholars say the mere evidence of error is not adequate to overturn the outcome of an election. But at least one legal expert apparently believes that declaring the election invalid could be a legitimate response under the right circumstances.
The Minneapolis Star-Tribune reports that Ohio State University professor Edward Foley, an expert on election law, has written: “Even if the court lacks the power to order a new election, it could simply release a final judgment saying that it is unable to say which candidate received more legal votes, and leave it to other parts of the state government to figure out what to do in this situation.”
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