In it, but not of it. TPM DC
In response to the Franken motion to dismiss, Coleman reiterates that a fully accurate count -- undertaken under the changes that Coleman is arguing for -- will result in him being shown as the winner in the race. And as an alternative, they continue to raise the possibility for the court that they cannot determine a winner at all, thus discarding the election.
The question of evidence is best illustrated by the case of rejected absentee ballots that Coleman would like to have put in the count. The Franken briefing alleges that Coleman has only submitted full evidence on perhaps 20 envelopes, while the Coleman brief says they've introduced sufficient evidence to get 1,725 ballots admitted into the count, and that they are preparing a spreadsheet that will lay out the case to count more votes.
Team Coleman does say they've provided the specific information "for many of these voters and their witnesses, though not all," -- but they take issue with the idea of having to present strong affirmative evidence on each ballot. The reason for this is that the statewide voter system has been shown to contain clerical errors, or to be out of date in some cases. Thus, on the question of submitting complete evidence, "the efficacy -- and necessity -- of doing so has been called into question."
One place where they do demand strong evidence, however, is the question of those missing ballots in Minneapolis, which they recently stipulatedrecently stipulated did in fact exist and have been lost. However, they say we cannot default to the Election Night total, becuase the physically-reproducible ballots in the recount are the best evidence, and not the original returns. It's worth knowing that to exclude the Election Night totals would cost Al Franken a net 46 votes.
Also, the Coleman team does effectively give up on various claims in the lawsuit that were never actually argued or had evidence presented during the trial -- for example, that the state canvassing board was inconsistent in awarding challenged ballots -- pretty much consenting to the dismissal of these claims. Team Coleman says they've aimed for brevity in this trial, and to not over-burden the court or take away the focus from the bigger issues. "As a result, Contestants are not pursuing and have not submitted evidence" related to those claims, the brief says.
The motion itself will be argued later this afternoon, and the court could render an opinion some time next week. It's highly unlikely that Franken's lawyers will get their fondest wish -- to have the whole case thrown out -- but they could potentially see the scope of Coleman's claims narrowed down significantly.