Franken wins by +312 votes.
Coleman filed his Appellant's Brief (62pg. PDF) April 30. http://www.minnpost.com/...
Franken filed his Respondent's Brief May 11 (53pg. PDF). http://old.theuptake.org/...
Coleman filed his Reply to Respondent (27pg. PDF) May 15. http://www.minnpost.com/...
The MN Supreme Court has also had a chance to examine 19000 pages of trial record, over 1800 exhibits, and testimony of over 140 witnesses. TODAY enough with paper....lets talk.... past the Orange fold... and use this diary as a LIVE THREAD if you like....
Orals
(Minnesotans feel like they've been at the dentist for 7 months.... without novocaine)
This morning is Der Tag. 9:00am CDT Team Coleman and Team Franken face off with oral arguments for 1 hour in front of the MN Supreme Court (MNSC).
The Minneapolis Star Tribune ran a front page, above the fold story in the Sunday edition on today's events. Nice publicity. They offered up a backgrounder on each of the 5 members of the MNSC and the issues at stake. BUT YOU already knew all this because the Internet/Cheetos-dusted/pajama-wearing/librul bloggers who aren't real writers had the story up...... 5 days ago!http://www.dailykos.com/...
(Hey reporter Pat Doyle! Skimming the internet for story ideas? Nyuk, nyuk!)
Still, Pat did have up a few nuggets and one FLAT out wrongness. The error is he reports Franken has named (true) and hired (false) staff for his soon-to-be Senate office. Uh, Pat? Al has indeed NAMED a couple of folks to begin assembling a staff but he has NO MONEY to pay them. By the Noah of Webster, Pat, "hired" means to "PAY for labor" so please, spare us the Reichving talking point of Franken's "presumption."
The Players
In addition to copying over Diary 150 from last Wednesday, Doyle did add a few bits and pieces to the sketch of today's personae dramatis. He quotes Wm. Mitchell College of Law professor Peter Knapp for Knapps's views on each of the 5 justices. Knapp demurs on Dietzen, saying he's been on the high court too briefly to really have defined himself in his opinions. Knapp thinks Justice Meyer writes opinions that reflect her experience and values (well DUH! Show me a judge that doesn't! Useless comment.)
The professor notes Justice Gildea dissented that a case before the Supreme Court should have been decided at a lower level. (Thats OK; a good sense of what the highest court in the state should be dealing with.) Where he gets interesting is on Justices Anderson & Page:
Anderson:
"Really appreciates the value of history in shaping the law ... to a greater degree than some of the other justices."
(I can dig that. That kind of broad perspective is important in my book.)
Page:
"Well aware of the importance common sense plays in the life of the law. You'll see opinions of his that remind the court, sometimes gently and sometimes not so gently ... that when a decision doesn't reflect that kind of common sense it may be out of kilter with where the law should go."
(As Mark Twain said, "Nothing is so rare as common sense"--- and its delightful to see it in the often arcane world of judgery.)
Setting and Format
If you are watching today on the Uptake:http://www.theuptake.org/
or on WCCO:http://wcco.com/...
(both likely carrying it from the same pool feed) the setting will look familiar: Room 300 of the MN Judiciary Building. The room is actually the home of the MN Supreme Court but they generously gave up their space for the Election Contest Court trial. (Cool fact of Room 300: Over the door are carved the words "Where Law ends, tyranny begins"--- a sober thought looking back over the last 8 years to a certain 5-4 decision regarding Florida ballots.....).
The format is Coleman will open for up to 25 minutes. Joe Friedberg will present. (Friedberg: (b. 1937) University of North Carolina, B.S., 1959; University of North Carolina Law School, J.D., with honors, 1963....Extensive criminal trial experience.....late addition (1/16) to Coleman team.... well known in Twin Cities law circles)
Then Franken's side will have 25 minutes to respond. Marc Elias will do the honors for Al. (Elias: (b.1969) Hamilton College, B.A., Government, 1990; Duke University, M.A., 1993 AND Duke University School of Law, J.D., 1993....campaign law, election finance, general counsel for Kerry-Edwards presidential campaign, general counsel for Chris Dodd presidential campaign 2008... attorney for DSSC..... good with adjectives (described a Coleman legal move as "inconceivable, miraculous, stunning, staggering, implausible, extraordinary and a "constitutional game of gotcha"--Pioneer Press)
Then (as the appellant carrying the burden of proof) Coleman gets up to a 10 minute rebuttal.
No particular factual evidence will be presented (although it may be mentioned in passing; factual issues are the provenance of the ECC. Appeals are on law.) The Justices will sit in their semi-circle, the attorney will step up to the podium and dare to say a few words, and then the Justices pick up their gavels and begin playing judicial "Whack-a-Mole." (In regular Whack-a-Mole you have one mallet and the moles keep popping up from everywhere singing "I'm Alright" and giving you the Bill Murray finger. In Judicial Whack-A-Mole there are 5 mallet/gavels and one lawyer/mole. Any of the justices can (and often does) break in and say, "Well counselor, what about......?" or "Does the plaintiff really expect this court to......?")
I really think Joe Friedberg for Team Coleman will be at a disadvantage here. His sonorous (or is that "snore-ous"? So hard to stay awake with Joe to tell) delivery and deliberate style, his lifetime of trying to get to a threshold of "reasonable doubt", and his admittedly folksy charm, will not serve him well in a high-profile case heavy on documents, election law minutiae, and a civil law standard of "preponderance of evidence."
OTOH Team Franken's Marc Elias was BORN for this kind of setting, will relish the intellectual repartee, can swing from detail to big picture (and probably from Latin to Sanskrit via the original Old Norse of the original draft of Minnesota's election laws) with delight, and give the justices solid grounds to side with his argument by citing reasons from the Magna Carta through the US Constitution right down to the serinakaker or syltkaker recipe for recount workers in Wanamingo.
Things to Watch For
1) Friedberg will likely use the phrase often: "The Election Contest Court erred when they..." He's not calling the ECC incompetent or dumb. This is sort of lawyer's boilerplate on appeal. To take your case to a higher court you HAVE to frame it in terms of "The prior court made the following errors or mistakes when they did/did not do....." No disrespect or slamming here, just par for the course.
2) As Doyle wrote in his front pager:
Court experts will watch to see whether the justices direct more skeptical questions to either Coleman's or Franken's team. But such questioning could merely reflect a devil's advocate approach, in which judges interrogate the very side they are leaning toward.
Sort of a "I'm leaning your way; talk me out of it or show me how you'd handle this/that objection." So cheer if you like if, say, Justice Dietzen nails Friedberg on something Joe can't answer, but keep your salt shaker handy. It may mean less than it appears.
3) While Coleman mentioned both the Minneapolis 133 and the "duplicate/double counted ballots" in his brief I'll be rather surprised if either get mentioned. The Mpls 133 (where 133 voters in question showed up to voted, signed in to vote, and according to the voting machine tapes voted, and then whose ballots were mispalced/lost by city election officials; the 133 broke for Franken net by +46) is SO dead that in 500 years archaeologists excavating under 20 meters of concrete will find the bones of Jimmy Hoffa before they find any evidence of these votes being anything other than already counted and settled.
3A) The Coleman Team did not offer facts, testimony or evidence of the alleged/supposed/possible/theoretical/made up duplicate ballots that might possibly/maybe/perhaps/coulda/sorta/mighta been counted along with their original ballots in the Recount. Well, there was election Judge Pamela Howell, the "strike her testimony"/ so stricken/ "I'm sorry it will never happen again or my name isn't Tony Trimble" re-instate Ms. Howell's testimony/tamper with the witness/"I renew my motion to strike this witness' testimony AND HER CLAIM"/ ordered stricken/"Fine me, sanction me if you must but please re-enter this woman's testimony"/ So sanctioned, so $7500 fined Mr. Trimble/so re-instated with limits", THAT election judge and THAT claim. Well thats about as likely to gain traction with the MN Supreme Court as an Icelander marrying a Finn (known in MN as "kinky"; rare, rare.)
4) Equal Protection.
Did the counties apply different standards to the counting of absentee ballots? Enough to make a difference? Coleman/Friedberg will argue yes. Elias for Franken will argue that the differences were NOT discriminatory and they did NOT invalidate the election. (Elias has already pointed out VA requires a driver's license or state equivalent to vote; MN does not...(can a substitute a recent utility bill, or have a neighbor vouch for you)..... yet no one has ever argued either state's votes are invalid.)
The ECC decision from April 23 spent 25 of its 58 pages addressing equal protection and shooting down every Coleman angle and argument. Watch Elias cite this often during his turn at bat.
Outcomes
Likely: MN Supreme Court will thank both sides for their arguments, take everything "under advisement" and adjourn. Then we wait, although maybe only a few days. (Court has been swift---2-3 days-- on earlier motions; but then this is an appeal.)
I think it was first Terrible Tom or Allen03 who raised a possibility the Court could issue a ruling quite quickly (days) and issue its opinion rather later (months). Is that possible? How common is it? If so, does any lawyer here think this possible? Likely?
In My dreams #1: Court thanks both sides for their arguments and announces, "Court is in recess"... rather than adjourned..... until 1:00pm." They all tramp back in and find in Franken's favor 5-0, agree with Franken's brief and order Governor Pawlenty to issue a Certificate of Election or face a contempt of court charge.
In my dreams #2: Grace Kelly at MN Progressive Project asks "Who would enforce dream #1?"
"...would Ramsey County Attorney Susan Gaertner enforce the contempt charge, with Sheriff Fletcher as the possible arresting officer?.......Interestingly, Gaertner is running for governor herself and might therefore allow a fully press covered arrest of Governor Pawlenty."
But 2 can play at this game!
"....if the directive is seen as originating with the MN Supreme Court, then would the Minnesota Attorney General Lori Swanson enforce the contempt charge, with local police forces from either Eagan or St Paul as the possible arresting officers?......Although currently undeclared, Minnesota Attorney General Lori Swanson has been frequently mentioned as a possible candidate for governor."
Grace actually called up and asked each office.... read it all here:http://www.mnprogressiveproject.com/...
Funny Pages
Grace wasn't finished this weekend. She got wind of the Tea Party Patriots rallying for Norm Coleman. You MN teabaggers can sign up for a Capitol lawn rally to "get it right, Minnesota" by re-electing Norm Coleman Senator. Turn up the heat on the Supreme Court! Sign up if you're coming TODAY from 3pm to 6pm in St. Paul on the Capitol lawn.
And 3......3 people have said they are coming, with 1 more "maybe." 3! WOW!
Ya know, I hope Noah Kunin of the Uptake and a camera person are there for that rally. They should get some good close-ups... "surrounding them". (If I run in circles fast enough chasing my tail I think I could surround them.)
http://teapartypatriots.ning.com/...
Thanks Grace!
http://www.mnprogressiveproject.com/...
OK I've got the early shift at the shop and limited access to the Internet there, so you'll have to let me know how it goes. Fill in your comments and help write the latest from yust southeast of Lake Wobegon.
Shalom.