Franken Legal Team To Coleman: You Dug Your Own Grave, Buddy

The Franken legal team has been busy this afternoon laying out their argument against Norm Coleman: You don’t get to pull a 180.

Franken attorney David Lillehaug has been cross-examining Deputy Secretary of State Jim Gelbmann, who oversaw a great deal of the recount and was originally called by the Coleman side in order to probe into the fallibility that exists within the system. Lillehaug has used the cross-examination as a vehicle to explore a wrinkle in Coleman’s new arguments about making sure every absentee vote is properly counted: Coleman originally opposed all similar efforts from the Franken camp during the recount.Some examples of the Coleman team’s arguments, from back when they were ahead in the count:

• Coleman’s attorneys previously maintained that ballot rejections carry a presumption of regularity by the local officials. They now argue that every ballot is entitled to a de novo review, independent of what the local official thought.

• They said that the Equal Protection Clause did not mandate a review of absentee ballots. They are now arguing that wrongful rejection, and any administrative variations across the state, violate Equal Protection.

• They previously argued that including previously-rejected absentee ballots would violate Equal Protection, by watering down the votes of people who filled out their documents correctly or voted at the polls. They are now saying that minor errors in ballot forms should be forgiven.

• They argued that absentee-voting is a legal privilege, and not a right, and therefore not entitled to an extra benefit of the doubt for ambiguous envelopes. In Coleman attorney Joe Friedberg’s opening arguments this past Monday, he said that the privilege/right question carried no meaningful legal distinction.

The Franken campaign is arguing on the basis of two similar legal doctrines, one known as estoppel and another one called invited error. What it amounts to in this case, lead Franken attorney Marc Elias said at a press briefing early today, is that Coleman is legally barred from making his current arguments about the absentee ballots when he himself spent the recount holding different views, went to court to seek resolution and then endorsed and participated in the process that followed.

During his own press briefing, Coleman lawyer Ben Ginsberg said: “Both campaigns have taken positions in the past that are not entirely consistent with what they are now. That is frankly irrelevant.” Instead, he said, the only thing that matters now is the existence of ballots that still have not been counted.

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