On Friday, the Minnesota Senatorial contest took a decided turn towards the ridiculous, and the verbal sparring turned ugly -- or, to be precise, it got even uglier. If you thought this fight was already contentious, it seems you ain't seen nothing yet.
To begin with, Coleman's attorneys filed for an immediate injunction against the Secretary of State's office, which had begun blocking out identifying numbers on the 933 absentee ballots that everyone had agreed were wrongly rejected. Coleman's argument was that some of those ballots fell into categories that the Election Contest Court had ruled were invalid ballots which cannot be counted. AS a result, Coleman argued, the Stipulation on the validity of those ballots must be "Null and void".
How did we get here? What's this all about? I'll explain what all the fuss is about, but first the really juicy bit:
Late today, Franken's attorneys replied, insisting that the Court uphold the Stipulation and Consent Order to count those ballots, waiving all contest claims on those ballots. However, Franken's attorneys did not stop there. In their opposition papers, they indicate they told Coleman's attorneys that the motion was "baseless. Further, Franken's attorneys requested the court to set up a briefing schedule for a forthcoming Franken motion for Rule 11 sanctions -- the rule that allows courts to penalize attorneys for filing frivolous motions and lawsuits.
Now, a bit of background: Per the order of the Minnesota Supreme Court, county and municipal election judges reviewed their decisions to reject approximately 12,000 absentee ballots, for one reason or another. The Court ordered the two campaigns to come together with the election judges to identify those ballots which everyone agreed should have been counted on Election Day. Ultimately, though election judges identified 1346 wrongly excluded ballots, the two campaigns could only agree to count 933 of those.
When those ballots were opened, Franken's lead surged by an additional 176 votes. Subsequently, Coleman filed an election contest. Early in that contest, Coleman challenged the validity of those 933 ballots, seeking to have the other 11,000 counted, but not the 933 that everyone had already agreed should have been counted. The hypocrisy of this argument was readily apparent, and untenable. Finally. Coleman relented and stipulated that all 933 ballots were properly counted. The Stipulation dismissed "with prejudice, all claims in the Notice of Contest relating to the 933 ballots".
When those ballots were first opened, the Secretary of State affixed corresponding numbers to the ballots and the ballot envelopes, anticipating that there might be some challenge to the ballots. As part of the stipulation, the Secretary of State was supposed to redact or obliterate the numbers on the ballots, in order to protect the secrecy of the particular voters' votes.
Last Friday, the Election Contest Court ruled on the Coleman campaigns effort to create categories of ballots that remained wrongly excluded. Much to Coleman's disappointment, the ECC used the request to deliver a body blow to the Coleman effort. Rather than admitting any particular category of ballots, the Court identified 12 categories of ballots that they ruled were not lawfully cast, and thus could not be counted.
The Coleman camp's initial response was to seek leave of the court to file a Motion to Reconsider the Feb. 13th decision. That was denied the same day the request was made, on Wednesday. So, the Coleman team woke up on Friday and decided that if they couldn't get the court to reconsider that decision, they were going to try and force the court to apply the same reasoning to those 933 ballots. According to Ben Ginsberg, at least 30 of those ballots would be excluded according to the legal interpretation the ECC handed down last Friday. Ginsberg said there may be as many as 100 of those ballots that ought to be excluded. They filed for the injunction to stop the SoS from permanently hiding the ballot numbers, which would make it impossible to ever "uncount" those ballots.
It seems to me that there's reason to doubt that Coleman wanted this injunction to be granted. Indeed, they may have filed it, assuming that the SoS office would be finished erasing or obliterating the numbers before the ECC could act on the request. They may have been hoping that their injunction request was too late.
Why would they hope for that? It's possible that they do not expect to gain votes in this "recall" effort. It may even be that they are bluffing about the numbers of ballots that would be invalid under the interpretations announced last Friday. However, if the ECC did not act in time to stop the SoS office, the Coleman campaign would have come back with a new request to reconsider the Feb. 13 decision, along equal protection claims. The argument would be that, since it was too late to un-ring the bell on the 933 ballots, the only equitable remedy consistent with equal protection would be to count some or all of the other ballots which the ECC had ruled could not be counted.
If that effort failed, the Coleman campaign would have what it hopes would be the basis of an equal protection argument to make to the Supreme Court of the United States, where they would call the whole recount into question and insist on a new election as the only plausible remaining remedy. If nothing else, the Coleman camp would have one more leg to their claim that Franken's election is based on a flawed process which yielded an unreliable total.
If that's what the Coleman team was planning, they may have had a wrench -- a NY Post monkey wrench -- thrown into their hastily-laid plans. When the injunction request was filed, the Uptake's Mike McIntee called the SoS' office to speak to the Deputy Sec'y of State Mike Gelbmann. When Gelbmann learned of the injunction request from the Uptake reporter, Gelbmann immediately ordered a halt to the process of blacking out the numbers. Gelbmann later estimated the office had gone through about half of the 933 ballots, but he also stated his belief that technology would make it possible to read the red ink numbers below the black marker used to obscure the numbers.
Although the Stipulation would seem to be determinative as to validity of the 933 ballots, it is possible that the ECC will want to bend over backwards to avoid creating any appeal issues -- particularly where the only remedy would be to void the entire vote. Coleman doesn't really have a legal leg to stand on in this argument, but the veiled threats of federal action to undermine the state recount may be more than the ECC can bear up to. They may decide to allow the Coleman team to make a case as to which ballots do not meet the standards the ECC announced last Friday.
The reality is that the Coleman campaign has been attacking the legitimacy of the process for some time. Their
"strategy is to attack the legitimacy of the Minnesota judicial system and the decisions of [the ECC]."
"Until now," as theFranken injunction opposition legal brief notes,
"that strategy has been pursued outside the courtroom through the voice of a spokesperson. Now, the strategy has entered the courtroom, through this motion."
The question is whether the ECC can afford to stand up that kind of pressure. Coleman's request is on very shaky legal ground. So shaky, in fact, that Franken's attorneys think the Coleman legal team should face sanctions for even making the argument. However, appearances matter in politics, and the ECC cannot be totally blind to that. They may decide it better to compromise the principle and allow the Coleman camp this one small victory -- a victory which I suspect the Coleman did not expect and probably did not want.
On the other hand, the ECC may side with Franken in ruling the injunction request to be wholly without merit, given the prior Stipulation. If the ECC does rule against Coleman, the court will have to give serious consideration to the sanctions request. It is a very big, rare deal when one side asks the court to allow it to seek sanctions against the other side because the attorneys are filing meritless claims. This means the legal fight has now become personal. It's only going to get uglier from here.