The Minnesota Trial: Strict Construction To The Left Of Me, Living Constitution To The Right?

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February 12, 2009 12:49 p.m.

A pretty funny dynamic has developed in the Minnesota court case, different from the way we’re used to seeing judicial issues argued in this country: The left is arguing for a strict interpretation of the law, while the right is taking the side that the mere letter of the law fails to grasp the situation.

The court today heard arguments on whether the campaigns think particular categories of rejected absentee ballots should be counted — that is, whether certain kinds of errors should be forgiven for one reason or another. As we saw earlier, the Coleman camp now has a very expansive view that nearly all the rejected ballots should be included, even if it goes against the letter of the law.

For example, Coleman lawyer James Langdon said that the Franken team “would have you sit in a vacuum, strictly interpreting a statute,” without taking into account the facts that have come into the court and shown just how complicated this all is. He also said that the circumstances of this case were “creating penumbras” around the written law.The Franken camp argued the opposite — that Minnesota laws are very specific about what kinds of ballots are to be counted, and only ballots where the exclusion was 100% because of clerical error should be counted. “The contestants [Coleman] talk a lot about what they wish the law might be, but not what the law is,” said lead Franken lawyer Marc Elias. “And the law is what it is, and has strict requirements that must be adhered to.”

A Franken legal filing in this matter even has this line:

It is ironic that Contestant Coleman, who previously insisted on strict laws against voter fraud and strict construction of the laws generally, now finds it in his interest to ask for judicial activism…

Will the Federalist Society be holding a reception for Franken any time soon, or the American Constitution Society for Coleman?

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