Coleman Lawyer: The Constitution Now Requires Counting Invalid Votes

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February 12, 2009 11:04 a.m.

In some key arguments just now before the Minnesota election court, lead Coleman lawyer Joe Friedberg has just advanced a novel argument: While he’s until now been arguing ballot by ballot that certain rejected absentee envelopes really meet all legal requirements, he’s now going much farther — demanding that a large number of votes that don’t meet the requirements be counted, anyway. And failure to do so is a violation of Equal Protection.

Friedberg’s argument is that most of them must be counted — though he was careful to say that this would not mean all of them –because there have already been documented cases of improperly-accepted ballots elsewhere in the count, where a voter clearly failed to properly fill out the required forms. “There’s not a single type of malady in the ballot or application process that has not already been admitted one way or the other,” he said.

And since he defines an Equal Protection violation as a failure to treat similarly-situated people exactly the same, this means it’s a violation of Equal Protection rights to not count invalid votes, if it can be shown that a significant number of similarly-illegal ballots were counted elsewhere.For example, Friedberg points out that 24 counties did not reject a single ballot on the basis of a mismatched signature on the envelope versus what was on the application — but surely, there must have been signatures in there that other counties would have rejected. By comparison, one individual Minneapolis suburb rejected over 70 ballots over signatures.

On a related side note, Coleman plans to bring in King Banaian, an economics professor and right-wing blogger, to make a statistical argument that the geographic variations in the numbers and kinds of rejected absentee ballots demonstrated a constitutional violation.

Franken lawyer Kevin Hamilton argued for a motion to not allow Banaian’s testimony, saying that even if we document variations, we haven’t explained why those variations happened. For example, other factors can contribute: Different numbers of first-time absentee voters, disabled voters, education levels, etc. We’ll see how that works out.

Friedberg’s case for a level playing field has endless possible applications, to say the least. If negligence goes unpunished in some places — though Coleman appears to be excluding outright criminality — it must be pardoned everywhere else. Does this mean every parking ticket I ever got for an expired meter was a violation of my rights?

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