At one point, Justice Christopher Dietzen went over Team Coleman's written offers of proof -- filings of proposed evidence that an attorney makes when a trial court won't admit it as official evidence, but he wants to preserve it for future appeals. "I've never seen an offer of proof like this," said Dietzen, complaining that the offers didn't actually identify specific potential witnesses or what their presumed evidence would have been been -- only continued arguments that "a substantial number" of ballots exist. Dietzen added that "the rules of evidence, the rules of civil procedure apply. Now why is this offer of proof not inadequate, in that we don't have admissible evidence that can show whether you've met your burden?"
It should be noted that Dietzen was appointed by Republican Gov. Tim Pawlenty, and came under blogosphere criticism for having donated in previous years to Norm Coleman's campaign. I should add, though, that in all the time I've watched this case I've never seen any evidence of improper judicial partiality on Dietzen's part, regardless of whom he presumably voted for on Election Day.
Justice Paul Anderson, who was appointed to the court in 1994 by then-Republican Gov. Arne Carlson, also said he was "very bothered" by the offer of proof. "It says you will obtain sufficient evidence," Anderson complained, then characterizing it as "basically just lists, lists of names" on ballots, but no details about the underlying stories of those ballots.
Justice Lorie Skjerven Gildea, a Pawlenty appointee widely viewed as a conservative, also asked Friedberg about the lack of evidence, to which Friedberg replied that the court dismissed the Coleman camp's central claim as irrelevant -- that counties across the state applied different standards in admitting or rejecting absentee ballots. "They clearly excluded evidence," said Friedberg, which is the evidence they truly needed to prove their case.
Justice Helen Meyer, an appointee of the Independence Party's Gov. Jesse Ventura, who had previously donated to the late Democratic Sen. Paul Wellstone and is viewed as a moderate on the bench, asked Friedberg why he did not compile evidence from all counties, as opposed to about two dozen, to prove their case about unequal treatment. "You're asking us to presume that, based on the evidence of a sampling of counties," said Meyer.
Towards the end of his initial argument period, Friedberg referred back to Bush v. Gore -- which he unbelievably prefaced by saying, "And I hesitate to use this case for anything," despite the fact that his side has used that case for just about everything. Friedberg said that in Bush v. Gore, it was enough to show arbitrary treatment of ballots between Broward County and Palm Beach County.
Friedberg said they've gathered plenty of evidence from the two-dozen counties they did call -- that counties used a varying standard, and that substantial compliance should be enough to let these ballots in, as opposed to a strict compliance standard used by the trial court. "We've made our case," he said forcefully. "You can't make it any better than that!"
Justice Anderson shot back. "I still have problems with your saying we're a substantial compliance state," Anderson said. "And as loud as you speak on this issue there's language I don't think you can overcome."