I’ve now had the chance to read through the Franken campaign’s rebuttal brief in Norm Coleman’s appeal to the Minnesota Supreme Court, and there are a few themes that run through it. (Check out Rick Hasen’s take, as well.) Coleman’s arguments are derided as internally sloppy, inconsistent between each other, and overall a cause of harm to the state for delaying the seating of the rightful winner of the election — Al Franken — a situation that should be remedied as soon as possible.
“Even if this Court were to take Appellants claims at face value, each fails as a matter of law. In most cases, Appellants’ claims are also barred as a procedural matter, and, even more fundamentally, they fail for simple lack of proof,” the brief argues. “On each of these grounds, Respondent respectfully requests that the Court affirm the trial court and make clear that Al Franken is entitled to receive the certificate of election.”
Examples of alleged sloppiness by Team Coleman abound in the Franken response. It’s noted that the Coleman camp is claiming a violation of the Substantive Due Process clause in the trial court’s handing-down of strict rules for accepting previously-rejected ballots — but the problem here is that due process wasn’t raised until late into the trial, and the “Substantive Due Process” phrase itself was not used until the closing arguments. Failure to properly argue a point would put it beyond possibility of appeal.
For another thing, they point to Coleman’s frequent invocation of Bush v. Gore in challenging variations in the acceptance and rejection of absentee ballots across localities, despite the fact that the Supreme Court limited the Bush decision to those sole circumstances in Florida: “The [Supreme] Court even went so far as to exempt the very claim Appellants now raise: ‘The question before the Court is not whether local entities in the exercise of their expertise, may develop different systems for implementing decisions.'”
As the best example of an accusation of inconsistency, Team Franken points to how Coleman wants to throw out the Election Night results from a Minneapolis precinct that lost an envelope containing 132 ballots during the recount, but were counted anyway — saving Al Franken from a net loss of 46 votes. “Given Appellants’ stated interest in enfranchisement,” Team Franken says, “it is ironic that they still seek to disenfranchise these 132 voters.”
Finally, The Franken brief asks for a certificate of election to be grated immediately — overriding the traditional 10 days for Coleman, assuming he loses, to ask for a reconsideration of the decision. “For over four months,” the brief says, “the citizens of Minnesota have been represented by only one United States Senator, and the effects of this delay are increasingly significant.”
They go further and ask the court to state affirmatively order the Governor and Secretary of State issue the certificate at the end of state proceedings — meaning this appeal itself — and is not to be derailed by any potential federal court actions Coleman might pursue. We’ll see how this all works out.
