Yesterday, Coleman filed his appellate brief in Coleman v. Franken. A PDF version can be found at http://www.minnpost.com/...
The most amusing line in Coleman's brief is on page 46:
Certainly all of the 1,359 rejected absentee ballots identified by Coleman at the conclusion of his case should be counted, subject only to confirmation by the Secretary of State's Office that the voter is registered and did not otherwise vote.
That pretty much sums up Coleman's whole case: "We did not put in the evidence, but you should go find it yourself."
Ain't gonna fly.
Below the fold is my analysis of each of the issues Coleman raises in this brief.
Issue #1(a): Exclusion of evidence of disparate treatment by local election officials.
Analysis: The ECC's job was to apply the uniform standards in the law. The application of differing or incorrect standards by local elections official MAY have resulting in some ballots being incorrectly counted, but MAY is not enough. Coleman's job was to show specific ballots that were incorrectly counted or incorrectly not counted, so that the Court could correct these errors. The evidence of differing standards did not show specific ballots that were miscounted, and therefore the ECC was correct to exclude this evidence.
Issue #1(b): Exclusion of evidence of wrongfully counted ballots.
Analysis: Coleman's notice of contest and interrogatory answers did not identify any wrongfully counted ballots, and this evidence was therefore properly excluded.
Issue #2: Ballots were included in the total that should not have been counted. (Coleman tries to dress this up as an "equal protection" claim, but it is not.)
Analysis: Coleman did not prove that any wrongfully counted ballots were actually included in the totals or that they actually did change the outcome, and therefore Coleman did not meet his burden of proof as the Contestant.
Issue #3: Strict compliance standard violated equal protection and MN law.
Analysis: Under MN law, strict compliance was the correct standard for absentee ballots. There was no equal protection violation because the ECC, as the final reviewer of all alleged errors, applied a uniform standard. Whether election officials erred by applying a different standard is irrelevant, because Coleman had an opportunity to present these errors to the ECC and have them corrected, and this satisfies both due process and equal protection.
Issue #4: MN statutes mandated an inspection of ballots.
Analysis: The statute does not mandate an inspection and the ECC did not abuse its discretion in finding that Coleman did not make a sufficient case to justify one.
Issue #5: Missing Minneapolis ballots should not have been included in the totals.
Analysis: The ECC finding of fact that there were missing ballots is not clearly erroneous and will not be overturned on appeal. Given the finding of missing ballots, the ECC acted properly in determining that the election night totals were the best evidence for these votes and including these in the certified totals.
We'll see how Franken responds, and how the MN Supreme Court rules, but in my opinion, Coleman's appeal has no merit.