June 7, 2009
MN Supremes: Show Us the Evidence
It took seven long months for the Franken-Coleman election contest to wind its way to oral arguments before the Minnesota Supreme Court. Now it appears that the day of final decision is finally near and the certificate of election will be issued.
The consensus of court-watchers is that Al Franken is likely to be seated as the junior U.S. Senator from Minnesota.
The basis for this consensus is the persistent quest for solid evidence from the Coleman legal team. Over and over again the various justices asked for evidence of how many votes there might be to overturn Franken’s 312-vote lead. The justices wanted a witness list, suggestions of what their testimony might be and hard numbers about the ballots in question, not statistical sampling or nebulous
Prof. Ned Foley of the Moritz College of Law at Ohio State University offered this analysis of the position of the Coleman legal team. http://moritzlaw.osu.edu/electionlaw/comments/articles.php?ID=6255
This momentous case may end up with a rather anticlimactic ruling that Coleman loses not because his legal arguments lacked merit, or even that the ballots he wanted counted weren’t voted for him in a large enough ratio, but instead because he simply failed to take the evidentiary steps necessary to show which specific ballots were wrongly treated by local election officials. If that indeed is the outcome, the inevitable question will arise: why did Coleman’s lawyers fail to take the necessary steps? Was it a lack of money, or a strategic decision not to spend it? Or some other explanation?
The reasons for the epic failure of the Coleman team to present a winning trial strategy may never be known. But Coleman will suffer for their ineptitude.
At one point, Associate Justice Christopher Dietzen, who was appointed to the court last year by Republican Gov. Tim Pawlenty, complained to Friedberg that he was offering “no concrete evidence” to back up his theories and almost pleaded with him to give him some hard data.
“Show us the numbers” seemed to be the Justices’ persistent demand.
Foley expounds on this point when he points out the flaws in the Coleman team’s approach:
Friedberg’s style is to be impressionistic, to “paint with a broad brush” as was said this morning. Whether that approach works in other contexts, it may not be well suited for election disputes of this sort, whether there is an accountant-like need for a ballot-by-ballot audit to quantify the exact number of votes for each candidate. Interesting, some close observers of this case have thought that Coleman’s strongest filing to date was his reply brief before the Minnesota Supreme Court, precisely because that brief had a level of specificity lacking in some of Coleman’s previous submissions. Yet Friedberg largely abandoned the detail-oriented approach taken in the reply brief, reverting to the vaguer form of Coleman’s earlier arguments.
Foley feels that the Franken legal team more cogently addressed the Justices’ concerns:
Franken’s attorney, Marc Elias, fared better in the courtroom today. He got his share of difficult questions, but he managed to deflect most of them by resorting to the procedural point that Coleman simply had not met his evidentiary burden to back up his legal theory. More significantly, perhaps, Elias presented a plausible account of what Minnesota’s statutes require local officials to do when reviewing absentee ballots and, then, why that understanding of the statutes comports with both the practice of local officials on Election Day and the U.S. Supreme Court’s precedent of Bush v. Gore. Elias’s account may not be the only plausible one, but it had more clarity and cohesion than what Friedberg offered this morning, and the justices let Elias articulate it without significant interruption towards the end of his allotted time, thereby suggesting that it made sense to them.
During the questioning by the 5-member panel one theme that recurred — where was the evidence to show that at least 313 votes were able to be found to overturn the finding of the Election Contest Court (ECC) that Franken had garnered 312 more votes.
Raleigh Levine, a professor at William Mitchell College of Law, watched Monday’s oral argument with her colleague, Professor Knapp. Like other observers of the Coleman-Franken fight, she said that the justices seemed to be sending a clear message that the Coleman team had failed to present enough facts to back up their claims about the handling of absentee ballots.
Furthermore, if the Justices decide to rule on pure evidentiary grounds it is unlikely that Coleman will be able to take his case to the Federal Courts.
Professor Levine lays out Coleman’s chances at a Federal case:
“If that is the basis on which the court makes its decision, to a large extent it insulates the case from the U.S. Supreme Court,” Levine said. “If the factual premise is accepted then you have to wrestle with the Constitutional argument, but if he hasn’t even established that, there’s nothing really for the U.S. Supreme Court to do.”
If Levine’s analysis (and that of other observers like Foley) is correct, Al Franken will soon be seated in the U.S. Senate. And there is nothing Coleman’s legal team will be able to do about it.