Closing arguments were conducted this morning in the Minnesota election trial, with the political world now awaiting the decision and any potential appeals. Having examined the Franken campaign’s closing arguments, let’s now take a look at the closer from lead Coleman attorney Joe Friedberg.
In many ways, Friedberg’s closing argument felt like it was a preemptive appeal — that the current rules point to a Coleman loss, and Friedberg was asking this court, or perhaps a future appeals court, to reverse key orders that had gone against Coleman during or before the trial.
At one point, Friedberg said how he’s always hopeful that when he argues as a defense attorney, before juries that have become convinced of the prosecution’s case, “I might get them to step back, clear their minds, open their minds, and let me try to convince them to the contrary.”
But he also admitted, in a flattering tone of voice, “It’s more difficult to do that with judges, because basically you know more about the law than I do.”
Rejected Absentee Ballots
Fundamentally, Friedberg argued against the court’s rulings that for rejected absentee ballots to be admitted at this time, they must be proven to have individually conformed to the full qualifications of the law on all points, and to a degree of certainty. “That standard doesn’t exist anywhere in Anglo-American jurisprudence,” he said.
Friedberg added that even though he’ll concedes the point on strict compliance, rather than substantial compliance, he takes issue with the very high burden of proof: “This is a civil case. The burden of proof is by a preponderance of the evidence, and absent some statutory pronouncement to the contrary, that’s the standard that we are required to fulfill.”
Friedberg said the starting assumption must be that the voter acted correctly — not that he has to prove they did, but that someone else must disprove it. For example, over 99% of absentee voters properly made out applications, so we should assume these voters did even if one isn’t present or testified to.
As a sign of good faith, he said the Franken campaign’s list of ballots should be counted. “We try to enfranchise as many as possible,” said Friedberg. “And I don’t think that could be clearer from the way I cross-examined voters called by the Contestee – if you can call it cross-examination.”
Double-Counting
On the matter of Rule 9 — the procedure that both campaigns agreed to for handling duplicates of damaged absentee ballots — he said the agreement was illegal and cannot stand: “Two candidates cannot get together and do away with a statute designed for the protection of the voters, no matter how wrong they think it is.”
Friedberg said the campaign is limiting the double-counting claim — caused by possible human errors in labeling the duplicates and originals — to ten precincts. And if they are counted again under the proper rules, Norm Coleman should have a net gain of 61 votes.
The Missing Ballots
This time, Friedberg wants strong evidence up front. On the matter of the missing envelope full of ballots from a deep-blue Minneapolis precinct, Friedberg said the law requires a manual recount — that only ballots counted by hand can be in the totals, and that the state canvassing board’s decision to revert to the Election Night totals was illegal: “If they can’t be counted, then there’s only one thing to do, and that’s disregard them.” If they were indeed disregarded — which doesn’t appear likely at this point — Al Franken would lose a net 46 votes.
The 14th Amendment
And Friedberg argued that the court’s declaration of strict standards is in violation of the Due Process clause of the Constitution because counties on Election Day were more lenient: “This changing standard from one time to another is a Substantive Due Process problem that cannot be corrected, unless the standards are made the same going forward as they were in the past.”
And he made an Equal Protection claim that the counties themselves were not uniform. For example, deep-red Carver County was strict about rejecting ballots whose witnesses weren’t properly registered, while Minneapolis assumed people were in order — an assumption that Friedberg approves of, as he estimates that this holds true in 96% of cases.
By the way, there’s a reason that a lawyer could vociferously cite the federal Constitution in state court: To save a claim for federal appeals.
The Conclusion
Friedberg closed his arguments by thanking the judges for all their patience with him, and made a frank admission: “I thank you very much for the tolerance…that I stumbled and stammered a lot in the course of this case. I now know a lot more about election law than I did when I started this case — which was zero.”
You see, Friedberg is a criminal defense attorney, and a very well-respected one. He took this case well outside of his expertise because he is a long-time close friend of Norm Coleman. In fact, he’s personally a Democrat, and in an interview from before this election he said: “I would do anything for Norm, except vote for him. And I’ve told him that.”
