Joe Friedberg seems to be throwing in towel, pinning last of hopes on Hail Mary 'Constitutional argument' appeal...
Brad Friedman
BradBlog
According to a transcript of a radio appearance this week by former Senator Norm Coleman's attorney, Joe Friedberg, the Republican will most likely lose his election contest against Al Franken for the U.S. Senate seat in Minnesota.
Hotline's Jennifer Skalka quotes Friedberg as conceding that Coleman will "probably" lose when the 3-judge panel currently deliberating the case, which both sides rested last week, announce their verdict.
"I think it's probably correct that Franken will still be ahead and probably by a little bit more," Friedberg admitted, after announcing that he was "done" with the case.
The Democratic challenger, and now apparent Senator-elect Franken was certified by the bi-partisan state canvassing board to have received 225 more votes than Coleman, out of some 2.9 million cast, at the end of the painstaking, transparent, post-election hand-count of all of the states paper ballots. During the course of Coleman's election contest, which followed that hand-count, Franken gained another 50 or so votes after it was determined that a number of legally cast absentee ballots were inappropriately rejected by election officials.
(More here.)
Friedberg comments are only surprising in that the Election Contest Court judges have not ruled … by making this comment, he is essentially telling them that they are irrelevant. Not smart … but these judges have been taunted by the Coleman legal team before and they have worked very hard to be fair and not give the MN-Supreme Court a chance to overrule.
ReplyDeleteColeman wants to appeal based on violations of Equal Protection but that is not really relevant here. No voter was denied an opportunity to vote. However those that choose to vote via absentee had to follow certain procedures. In Minnesota, voting is a right, but to vote via absentee is a privilege. The Court should see that there was no bias since the procedures were followed successfully in approximately 280,000 cases but 2% of the participants had problems. Many of these “problems” were rejected by the Coleman legal team such as violation of the witness requirement, signature mismatches, non-registered voters, etc.
The main argument that is being made is that some counties (are there more than Carver County?) applied a strict review while other counties were lax. OK, except all candidates were subject to the same review by the county, so those that complied with the rules are probably in proportion to those that did not. This is not a case of a “class of voters” that are being denied … just random people who did not comply with procedures. And if the county did alert the voter to the error a correction could have been made.
Materiality is also a consideration. If Franken’s lead is 500 and Carver had 83 voters rejected due to strict application of the rules, then even if every voter had been a Coleman voter, Franken would still win. The purpose of an election is to determine a winner, not to determine the precise margin of victory.
Lastly, Rick Hasen of Election Law Blog has written a piece on Slate that looks at the Equal Protection relevance and doesn’t think that Coleman will succeed.