I watched the arguments for summary judgment in the Coleman election contest yesterday, and there's a possibility that the trial will be short and sweet.
There appear to be three real issues in the case, four if you consider the Minneapolis precinct counting missing ballots and a Maplewood precinct counting found ballots to be separate issues.
Inside, I discuss the issues, and how the contest panel's rulings are already narrowing Coleman's case. (Also, don't miss WineRev's daily recap! Also.)
It appeared to me that Franken's argument for summary judgment on the Maplewood/Minneapolis issue was persuasive. They provided evidence describing what happened in the precinct, and why the election officials submitted the results that they submitted. In response, the Coleman campaign did not suggest that they would contradict that evidence, but merely that those precincts merited "inspection."
Little did Coleman's attorneys know, the three-judge panel had already decided that there would be no "inspection." (PDF) Leaving Coleman with a goose-egg for evidence refuting the evidence provided by Franken on summary judgment. You need more than zero evidence plus speculation to create an issue of material fact and prevent summary judgment.
The panel hasn't ruled on summary judgment yet. I expect they will by Monday. They may be tempted to let this issue come to trial for the sake of appearances, but I think summary judgment would be appropriate. If they grant it, their denial of Coleman's request for an inspection of ballots might turn out to be what ultimately foreclosed trial on the issue.
That would leave two issues for trial: disparate treatment of absentee ballots, and allegedly double counted ballots. Coleman asked for summary judgment on the first of these, but probably won't get it. The parties disputed the proper standard of review for absentee ballot rejections, but that's a question of law which can be decided by the panel before trial. Coleman wants de novo review of the face of every absentee ballot envelope, while Franken argued for a rational basis review of the decisions made by local election officials—and Franken's argument was supported by caselaw.
Coleman made much of the "equal protection" implications of letting local election officials accept or reject ballots. They argued, essentially, that if one local official somewhere in the state admitted a ballot, but a similar ballot elsewhere in the state was rejected, then equal protection required acceptance of the previously rejected ballot, even if the rejection was lawful. Franken attorney Elias pointed out that that has the effect of requiring the state to replicate the errors of every local election official, which is an absurd result and not really what equal protection requires. Judge Marben asked the Coleman attorney, "where do you draw the line?" The Coleman attorney had no answer.
The argument is basically that Minnesota absentee ballot law always results in widespread constitutional violations that can only be remedied by accepting ballots that the law says must be rejected. I guess this is an improvement from their now-abandoned strategy of cherry picking ballots to be counted, but it's no more likely to be successful.
The answer, of course, is in the standard of review. If the standard of review is rational basis, the line is that the decisions of local election officials stand unless they were irrational. Coleman, instead, wants the panel to substitute their judgment for the judgment of the local officials. This, too, appeared to be a hard sell. I don't believe that the panel feels they are in the position to do so. We shall see.
Once again, a previous ruling—denying Coleman's request to have all the absentee ballots dumped on the court—may have the effect of foreclosing this option for Coleman. The panel decided that photocopies were good enough to evaluate the issue, and Coleman went and submitted altered photocopies, generally missing the reason(s) listed by local officials for rejecting the ballots. That had the effect of drawing to the court's attention why the decision to accept or reject these ballots might be better left in the hands of the local officials, and not made merely "on the face of the envelope" as Coleman suggested could be done.
That leaves the double counting issue. We didn't hear much about it in Friday's hearing, because it's clearly a factual dispute. This issue alone isn't enough to overturn the result.
It seems the door is rapidly closing on Coleman's contest. Which is good, because it was always a conclusion in search of evidence. As my wife has pointed out, you bring a contest when you already have evidence something went wrong. You don't just bring one because you lost.
P.S. According to the Strib, Coleman has filed a separate action about the absentee ballot issue. I haven't seen the pleading, but I'd agree with Elias's assessment: it's a gimmick. Coleman's election contest has already placed the issue before the panel, so it seems like little more than procedural voodoo with no substance. Not to mention patently untimely.
Unless it's a federal suit. That would be news.