Coleman Lawyer Floats New Possibility To Judges: Throwing Out The Election
By Eric Kleefeld - March 3, 2009
TPMDC
That talk from the Coleman campaign about how we can't get a legitimate winner in the Senate race, and therefore we can't certify a result for Al Franken, has now gone beyond the court of public opinion -- it has officially entered the courtroom itself.
The Coleman team has previously said that the judges have to either undo the strict standards for letting in new ballots, or else undertake a review of all 290,000 absentee ballots from Election Night and start proportionately reducing the totals. In a new letter to the judges, however, Coleman lawyer James Langdon floats a new solution -- declaring the election to be unsolvable, and nullifying it entirely:
TPMDC
That talk from the Coleman campaign about how we can't get a legitimate winner in the Senate race, and therefore we can't certify a result for Al Franken, has now gone beyond the court of public opinion -- it has officially entered the courtroom itself.
The Coleman team has previously said that the judges have to either undo the strict standards for letting in new ballots, or else undertake a review of all 290,000 absentee ballots from Election Night and start proportionately reducing the totals. In a new letter to the judges, however, Coleman lawyer James Langdon floats a new solution -- declaring the election to be unsolvable, and nullifying it entirely:
Some courts have held that when the number of illegal votes exceeds the margin between the candidates -- and it cannot be determined for which candidate those illegal votes were cast -- the most appropriate remedy is to set aside the election. In that regard, the Court may wish to review the following cases addressing situations in which the number of illegal votes is large and the margin of victory is small...So there you have it. The Coleman legal team is now officially putting forward the idea of throwing out the election, as a serious potential legal remedy. The context so far indicates that this is part of their game of chicken with the court, to get them to undo the strict standards themselves, or perhaps go along on a proportionate deduction regime that might hurt Al Franken. But who knows where it will go from here.
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FYI : Sarah Cherry has written a commentary at The Ohio State Election Law site addressing the question of whether the Court could invalidate the election as well as other aspects of the case. Here is the paragraph on that question (but you may want to read her complete commentary.)
4. Invalidate the election
It does not appear that this court will invalidate the election. This remedy may not be available as it is not explicitly spelled out in statute and the court has a duty to determine which candidate received the most votes. Even if this cannot be done to the satisfaction of statisticians, it is not a legally impossible task. The Minnesota Supreme Court in 1955 did invalidate the votes from an entire precinct in an election where many rules had been broken in the precinct and, while no fraud was shown, the circumstances were ripe for fraud to have taken place. The court held that the absence of fraud will not always mean an election was valid where so great an opportunity for fraud was created by ignoring the election laws. In re Contest of Election of Vetsch, 245 Minn. 229 (1955). In no case since Vetsch has a Minnesota court found such a complete disregard for election laws that the true will of the people was not reflected in an election’s outcome, requiring the invalidation of a jurisdiction’s entire vote. That case had to do with fraud and the circumstances that foster fraud, and neither of these conditions are alleged by Franken or Coleman to have existed in the November 2008 election.
So, Ms. Cherry does give a glimmer of hope that an activist court could use to throw it back to the legislature to enact an order for a special election. Thus far, the Appellate Court has been anything but an activist court. Not only has the Court ruled with great care in knowing that every decision will be questioned not only by higher courts but also studied in law schools all over the nation.
Today, Franken's team responded to Coleman's suggestion. They destroyed the claim citing their misinterpretation of the cases that Coleman cited.
Personally, the Equal Protection Clause argument doesn't stand up in my view. They argue that some counties were stricter in adhering to the absentee ballot procedures while other counties were lax. That may be true, but the rules were consistently followed in each county ... potentially both candidates gained or lost the same as both Coleman and Franken votes faced the same degree of legal threshold. This means the sum of all counties will produce a vote breakdown influenced by one chief factor, the actual proportion of voters in those counties supporting one candidate or another. Their focus is on one county where potentially up to 83 ballots were rejected due to witness problems. [It should be noted that although these ballots were rejected, it is unknown if the voter didn't correct the problem and subsequently did vote ... that has already been proven in other examples.] The problem is that even if all 83 votes had gone for Coleman, he still does not reach the threshold required to surpass Franken. If anything this would not be an Equal Protection problem since Minnesota laws treat the use of absentee ballots as a privilege (yes, its a right to vote, but it's a privilege to vote absentee). There has not been any claim of a “class” of citizens that were denied the privilege of voting via absentee, but instead it is the voter who did not adhere to the rules.
IF the Appellate Court accepts Coleman's argument, won't every losing candidate try the same approach ... and then the only resolved elections will be those where the winner's margin doubles the losers.
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