Minnesota Court Denies Coleman’s Attempt To Un-Count Ballots He’d Previously Agreed To

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The Minnesota election court has just handed down another key ruling, totally denying Norm Coleman’s attempt to undo his previous agreement that 933 previously-rejected absentee ballots be included in the recount — and which favored Al Franken by a 176-vote margin.

The two campaigns had previously entered into a stipulated agreement three weeks ago, which had been formalized by the court through an order declaring the ballots were legal, and directing the Secretary of State’s office to redact identifying numbers that had been placed on the ballots and their envelopes just in case they were to be removed later — an action that had also violated the secret ballot.

But then Coleman filed a motion on Friday, asking for an injunction to stop the redaction of those identifying numbers — a declaration that they were nullifying their agreement, on the grounds that the court’s ruling for strict standards in accepting additional rejected absentee ballots had to be applied retroactively.

After some very heated arguments on Friday, the court has denied the injunction — and declared that Coleman is stuck with the agreement that he made, that these ballots were legal:

The binding stipulation and Order of February 3, 2009 are dispositive of Contestants’ motion. Both campaigns have been completely and ably represented by counsel throughout these proceedings. The stipulation was drafted by counsel and signed by sophisticated parties familiar with the subject matter. The Court presumes the parties were apprised of the risks and benefits associated with entering into this agreement.

At the time the Coleman camp entered into this agreement three weeks ago, they were making a bet that they could leverage these ballots towards getting more lenient standards to count other rejected ballots that they wanted put in. Not only did they lose that wager, but they then demanded their money back — and the house just gave a very strong No.

This ruling also gives us some further hints of where the court could be going. For one thing, Coleman has another motion pending, a demand that the strict standard be applied to all absentee ballots counted on Election Night — to take the gambler metaphor further, they lost the bet and are now demanding that the house pay them by subtracting previous votes, or by reversing their ruling and letting more ballots in.

But if the court isn’t applying that logic here, it doesn’t seem likely that they’ll go for this other maneuver — especially because it’s impossible to un-count Election Night ballots, because they were de-coupled from their envelopes at the time.

The next step is clear: The Coleman campaign is bound to appeal this, either in the middle of the trial or immediately afterwards.

Late Update: Check out this other quote from the opinion — where the court lays out another reason Norm hasn’t met the high bar for getting an injunction (emphasis ours):

The Court emphasizes that its analysis with respect to the instant motion does not involve a determination on the merits of the case as a whole, and nothing in this Order shall be construed as a definitive holding on the merits of the claims raised in the Notice of Contest or in the Answer and Counterclaims. See, e.g., Lano Equipment, Inc. v. Clark Equipment Co., Inc., 399 N.W.2d 694, 699 (Minn Ct. App. 1987); Minn. R. Civ. P. 52.01. Contestants’ allegations notwithstanding, it is unclear at this stage whether Contestants will succeed on the merits of their case. For that reason, this factor weighs in favor of denying Contestants’ motion for injunctive relief.

Norm is now in the fifth week of presenting his case, and is likely to rest either this week or next. And so far, the court says it’s “unclear” whether he can succeed. Getting an injunction usually requires a likelihood of success, and Norm hasn’t met it.

Again, they take great pains to say that this isn’t a definitive holding, but this hardly looks good.

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