As part two of our review of today’s proceedings at the Minnesota Supreme Court, where oral arguments were heard in Norm Coleman’s appeal of his defeat at the election trial, let’s take a look at lead Franken attorney Marc Elias’ rebuttal.
Elias did get a fair number of tough questions from the five-member panel, but for the most part they had a different flavor than what Friedberg got. Elias received a lot of questions that amounted to putting him on the spot regarding the nature and ramifications of his arguments and his objections to Friedberg’s. By contrast, I pointed out that Friedberg got questions that were so pointed as to amount to a ridicule of his case — specifically the lack of full evidence.
Illegally-Cast Votes In The Count — The Burden Of Proof
For example, conservative Justice Lorie Skjerven Gildea asked Elias about the possibility of illegal votes in the count: “If we want to decide who got the most legally-cast votes, and there’s evidence that suggests illegally cast ballots were accepted – now I know we can’t tell who they voted for, because that horse is out of the barn – how do we tell who got the most legally cast votes?”
Elias replied with an oft-repeated line that came up in the trial from Deputy Sec. of State Jim Gelbmann, that “every ballot tells a story.” Elias said that a seemingly illegal ballot from our current perspective might have been legal — that a local official could have accepted it due to applicable extenuating circumstances, such as a disabled voter being unable to sign it. Since we don’t know the circumstances — and most importantly, since Coleman hasn’t offered evidence — we can’t make broad assumptions about categories.
Gildea then asked whether she was properly summarizing Elias’ argument: “It was his [Coleman’s] burden to prove it. He didn’t prove it, he can’t stand up here now and speculate.” Elias agreed that this is indeed his argument.
Timeliness of Arguments, And Due Process
Elias also argued that Coleman had effectively waived his right to discuss equal protection due to a failure to plead it in a timely manner or offer up evidence at the beginning of the trial. Justice Christopher Dietzen replied that the election-contest statute doesn’t necessarily require a full statement of every legal argument right at the outset. “If we follow your waiver argument,” said Dietzen, “you didn’t plead waiver, so you waived the right to plead waiver.”
Elias said in response that in some cases the violations were simply too intolerable — such as the failure to reference ballots until the very end of the trial. For example, Friedberg only began referencing Roe v. Alabama, a 1990s election case, during the closing arguments. Whatever the proper time is, Elias said, “it must come before the contestants close their case in argument.”
Also regarding the Roe case, which the Coleman camp has used to argue on due-process grounds against the trial court imposing a strict standard for letting in previously-rejected absentee ballots, Elias later reminded the court that this case was a ruling against bringing in a more lenient standard for counting absentee ballots. “And the changing of the rules would be to say, let’s hold an election,” said Elias, “then figure out what all the counties did, then create an amalgam of that and apply it to the past election.”
Order, Chaos, And Compliance
Justice Paul Anderson likened the Coleman camp’s complaint of irregularities to someone looking at order in the universe, that galaxies all function very much alike, to prove that existence has been intelligently designed. “Coleman is saying look at this aberrant galaxy, this is proof that the universe is chaos,” Anderson said. He then asked: “Now tell me why they have not shown us enough that we should not implicate due process and equal protection here? Because we cannot see the whole universe, but they have shown us enough?”
Elias said that insofar as there are irregularities, the time to challenge them is before the vote is cast. That in every election everywhere, there is some imperfection to be found — that a felon might have voted, or some ballot was counted that shouldn’t have been. (This may have been a deliberate, oblique reference to a local news story about a convicted felon who pled guilty to casting a ballot — and said he voted for Coleman.) But if the ballot wasn’t challenged before being cast — which Elias said applies to absentee votes, too — then it’s done.
In regards to the questions of variations between counties in accepting or rejecting ballots, Elias pointed to the trial court’s ruling that different standards come from counties with diverse resources and needs to be satisfied that voters complied with the law — for example, a small town might just have a “Main St.,” while a city could have to differentiate between “Main St.,” “Main Ave.,” etc.
Justice Gildea followed up on this by asking whether this in fact amounts to the substantial compliance standard preferred by Coleman. Elias said it does not — that it is a matter of necessary discretion to determine that the law was strictly obeyed. Elias referenced a previous recount case in Miami that had shown, according to the ruling in that case, “a striking absence of effort to comply with any laws,” as opposed to variations in honest efforts to comply.
“It is only where you have this complete failure, this complete absence of any standard,” Elias said, “this complete absence of any effort of election officials to comply with the law, that this court has found there is a cognizable problem under the law.”
