I have now had the chance to read through Norm Coleman’s brief in his appeal of the Minnesota election trial — check out Rick Hasen’s take on it here — and it sets up a coherent formulation of many of his previous arguments, boiling down to a few options Coleman wants the state Supreme Court to consider: To preferably count more ballots that are presumably for Coleman, or else subtract ballots that are presumably for Franken, or declare the whole election null.
The main focus of the brief is its argument that the trial court wrongly established a strict standard for admitting in any absentee ballots that had been previously rejected by local officials, as opposed to a more lenient standard that was the de facto standard for most jurisdictions across the state on Election Day. And these local standards are themselves deeply flawed, Team Coleman says, due to varying interpretations and applications of the state law by the human beings conducting the election from one place versus another.
If a strict standard is applied, they say, then logically this means there are ballots already in the count from Election Day that would not have been accepted, and are therefore illegal votes — more than the 312-vote difference between the two candidates. But this conundrum can be avoided with the adoption of a single lenient standard to allow in Coleman’s list of rejected absentee ballots, up to 4,800 of them.
In one passage, the choices are phrased succinctly.
“If the trial court’s standard is the correct one,” it says, “the Court would have to remand for a proportionate reduction of the vote tally on a precinct-by-precinct basis or, more likely, a determination by the trial court that on this record it cannot certify a winner.”
Another choice is offered: “on the other hand, if the trial court is not free to impose its strict compliance standard … then common law and the same constitutional guarantees dictate the remaining uncounted absentee ballots be judged by the same substantial compliance standard, meaning that on remand thousands more absentee ballots would be counted.”
The brief makes clear that “Coleman urges the Court to choose the latter approach,” but nullifying the election is still held out as an escape hatch of sorts.
The Franken reply brief is due by May 11. We’ll see what they have to say.
