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Franken Wins*


When Congress next week gets back its business of looting and pillaging, Al Franken will join the world’s most exclusive club. Norm Coleman’s recount appeal was denied by the Minnesota Supreme court:

After a trial, the three-judge trial court we appointed to hear the election contest issued its findings of fact, conclusions of law, and order for judgment, concluding that Franken received 312 more legally cast votes than Coleman and that Franken was entitled to a certificate of election for the office of United States Senator.  The question presented on appeal is whether the trial court erred in concluding that Al Franken received the most legally cast votes in the election for United States Senator.  Because we conclude that appellants have not shown that the trial court’s findings of fact are clearly erroneous or that the court committed an error of law or abused its discretion, we affirm.

In reporting the decision, every source I heard or read correctly included the fact that the decision was unanimous, 5–0. What I cannot link to is the tone around reporting this point. The tone was echoed in overhead and casual conversations in the meat world. And as my pallys in the meat world know, tone can carry as much meaning as the words do.

The tone was definite. The matter is now settled. It was unanimous; there are no questions or doubts. As usual with court decisions, I think people are inferring too much.

Yes, this question is settled. Coleman is out, Franken is in. But the tone suggests that the unanimous decision somehow gave the outcome an aura of righteousness. Justice has been served. This is the proper outcome.

Apellate judges, if serving justice, are not affriming an outcome. The are primarily affirming process. The system trusts its process to produce just outcomes, and supreme courts review process and reasoning in light of precedent to be sure lower courts followed the rules. Supremes usually rule on finer points of law than fit into common-man sound bites.

The Minnesota Court did not validate Franken. They validated the trial court’s opinion, which had validated the Secretary of State and election officials’ processes. Coleman appealed on five points.

1) Strictly following election law was not fair, as absentee voters expected some laxity in the rules. Coleman said the recount was too strict. The court said no:

We conclude that our existing case law requires strict compliance by voters with the requirements for absentee voting. Thus, we reject Coleman’s argument that only substantial compliance by voters is required.

The laxity in the process was wrong, but legally tolerable. The Court rejected the appeal, but did not endorse the election-day sloppiness.

2) Coleman argued that each jurisdiction applied the same rules differently, and violated the guarantee of Equal Protection. No:

The trial court found that election judges applied the election laws in a consistent and uniform manner.  The court found that election jurisdictions adopted policies they deemed necessary to ensure that absentee voting procedures would be available to their residents, in accordance with statutory requirements, given the resources available to them.  The court also found that differences in available resources, personnel, procedures, and technology necessarily affected the procedures used by local election officials reviewing absentee ballots.

If the rules are follwed in good faith, some variation is legally tolerable. Further an Equal Protection appeal requires proof that the variations were intentional, aimed to produce an outcome. Coleman did not demonstrate a sufficient pattern of unfairness, nor explicit evidence of intentional fraud.

3) Coleman argued that it wasn’t fair that improperly accepted absentee votes were counted. The Court said:

The trial court rejected Coleman‟s argument and the evidence Coleman offered to support it.  Coleman made an offer of proof identifying absentee ballot return envelopes  that had been opened and the enclosed ballots removed and counted on election day or  during the manual recount.  Coleman did not seek to present evidence identifying the  ballots removed from those envelopes and could not have done so, because once the  ballots were removed from the envelopes and deposited in the ballot box, they were  commingled with other counted ballots and could not be identified.  We conclude that the  court did not abuse its discretion in excluding this evidence because the legislature has foreclosed any challenge to the legality of an absentee ballot based on the return envelope once the ballot has been deposited in the ballot box.

Some ballots that should not have been counted were counted. Mistakes were made on election day. But Coleman couldn’t prove which ballots should have been removed, and the law says that once a ballot makes it out of the absentee envelope and into the ballot box, those votes count, no matter what.

4) Coleman said his appeal was hampered by not being allowed to inspect ballots which he belived were counted twice. The Court said:

Coleman contends that the denial of the inspection foreclosed his ability to gather information to fully present his case of double-counting of unmarked duplicate ballots during the manual recount.

Coleman conceded at the hearing on the petition for inspection, and does not dispute here, that he could prove his claim of double-counting by subpoenaing the ballots  and election materials and by subpoenaing witnesses to testify.

The denial was within the rules, and Coleman said he could have proved the point without the inspections anyway.

5) Coleman maintained that ballots lost between election day and the recount should be included in the recount. The Court said:

The ballots are missing, but Coleman introduced no evidence of foul play or misconduct, and the election day precinct returns are available to give effect to those votes.  We hold that the trial court did not err in ruling that the election day precinct returns for Minneapolis Ward 3, Precinct 1, were properly included in the tally of legally cast votes.

The law says if ballots go missing, we are to use the election day totals for the recount. That law was properly followed, despite the revealed incompetence of certain election judges.

Reading the whole opinion leaves plenty of room to doubt Minnesota election procedures. Ballots were lost. Ballots were improperly counted. The bottom line seems to be that as long as nobody obviously cheats, we have to accept the outcome.

That doesn’t square with the definitive tone of folks discussing the outcome. And not so many covered the fact that the real Supreme Court tally was 5-0-2. Two justices did not take part in the case. If politics were baseball, this election would surely have an asterisk.