Wherein everybody flip-flops, Coleman makes a successful argument, but may have blown it with a 'phony' website crash and an horrendous argument for Internet voting...
By Brad Friedman on 1/30/2009, 3:41pm PT  

This afternoon, Day 5 of the U.S. Senate election contest between former Sen. Norm Coleman (R) and apparent winner of the '08 election Al Franken (D), Coleman offered another reason, just in case you needed one, to oppose his return to the Senate:

In a press conference outside the courtroom held just a short while ago, Norm Coleman announced that if he gets back into the Senate, he'll work on ways to make it easier for young people to vote online.

While we're in favor of "young people," and as many other legal voters who wish to vote, actually getting to cast their votes and have them accurately counted, if you like our currently unreliable electronic vote counting systems, which employ untested, unsecured, hackable garbage, then you'll love seeing that system opened up to the Internet!

All that said, however, where Coleman's case began on Monday as little more than a comedy of one error after another, as we explained in some detail earlier this week, over Days 4 (yesterday) and 5 (today), his legal team seems to have found a bit of footing, even if they've had to counter most of their own legal arguments that they'd made previously to keep ballots from being counted during the post-election hand-counting of ballots.

At the end of that process, Franken was found, by the state canvassing board, to have defeated Coleman by 225 votes, out of 2.9 million cast, even though Coleman was slightly ahead in the vote count during most of that time, and thus, argued adamantly against including as many previously rejected absentee ballots as he could.

But that was then, when he thought he was winning, and this is now, when he seems to be losing...

The Slow-Motion Comedy Show

Many of these details are distilled from the excellent coverage by TPM's Eric Kleefeld, who has been reporting, since the start of the trial, from the courtroom in MN, where he's been filing a number of small, as-they-occur items. As previously, we'll try to both tie together key points of that reportage, from him and others, as well as contextualize the whole mess a bit for you, from what Kleefeld smartly described yesterday as "The slow-motion comedy show that is the Minnesota Senate trial."

Coleman's new-found support for Internet voting came following the testimony of his witness, Peter DeMuth, a college student who goes to school in Fargo, ND, who "drove several hours to St. Paul" on Thursday "just so that he could get his vote counted," according to Kleefeld's description of the testimony.

But like several of the six witness called by Coleman earlier this week to testify that their absentee ballot shouldn't have been rejected --- one of whom admitted that his girlfriend forged his signature on his absentee ballot application --- DeMuth's ballot was rejected because the signature on it did not match his application.

In DeMuth's case, rather than printing out the absentee ballot application he received online, and simply signing it before mailing it in, he converted the PDF, as available from the state website, into a graphic JPG file, used his mouse to initialize (rather than sign) the application, and then emailed it back and received his absentee ballot by mail in return. The signature on the ballot he sent back in then failed to match the moused initials on the application, and his ballot was rejected, as per state law.

The case was another one where procedural failures resulted in a legitimately cast vote being rejected, and Coleman is now outraged by it, despite the fact that both Coleman and Republicans across the land have long argued for the rejection of such ballots on equally flimsy grounds, often arguing --- loudly in the media and lawfully in courtrooms --- that such ballots amount to "voter fraud."

But, as we said, that was then and this now.

As we pointed out yet again earlier this week, ballots like DeMuth's, and some of the others who took the stand on Coleman's behalf earlier this week, are often too easily rejected by election officials. Though much of that is directly due to arguments from the GOP --- who generally benefit from as few votes as possible being counted --- that such ballots constitute "voter fraud."

The onus in such cases, we've argued, should be on election officials to prove that those ballots are, indeed, fraudulent, rather than relying on judgment calls by election officials that signatures don't match. Voters ought to be notified when that happens, and given the right to prove that their votes were legitimately cast or not. Otherwise, if ballots are rejected on the basis they are fraudulent, then voter fraud charges should be brought where possible.

It's nice --- if amusing, and extraordinarily hypocritical --- that Republicans, at least in this cherry-picked case, suddenly agree with the premise that votes shouldn't be so easily tossed on the basis of such technicalities. Even if they have to counter their own arguments, even during the course of this very election in MN, in order to do it.

Along those same lines yesterday, when Joe Friedberg, an attorney for Coleman, was trying to make the case that their witness --- the one whose girlfriend forged his signature on the absentee application, which then didn't match the real signature on the ballot --- the following extraordinary admission was made during the questioning of MN Deputy SoS Jim Gelbmann:

Friedberg: In point of fact, even though I did something I wasn't supposed to do with the application, my ballot should still count because my signature is genuine.

Deputy Secretary of State Jim Gelbmann: Not according to the procedures we use to determine whether the signature is genuine.

Friedberg: I don't care about your procedures.

(Franken lawyer calls an objection, is sustained.)

Friedberg: Okay, I do care...


And Speaking of Cherry Picking

Franken's team has been making the case that Coleman has been individually selecting, for political reasons, many of the witnesses they've been calling to the stand. They've carefully brought only the voters whose ballots were rejected that they wanted to bring in, because those voters happened to support Coleman, while avoiding bringing others whose absentee ballots were rejected by Coleman himself during the hand-count phase, after the MN Supreme Court's controversial decision to allow the campaigns to agree which previously rejected ballots should or shouldn't be counted.

As Kleefeld describes...

Upon cross-examination by Franken attorney Kevin Hamilton, DeMuth said he was contacted by the Republican Party and told about the problem. "They asked me if I knew my absentee ballot had been rejected. I said no," said DeMuth. "They asked me if I was a supporter of Norm Coleman, and I said yes, and they proceeded to ask me if I would like to go further."

Let's think about this for a moment: Over the last several days, the Coleman camp has said repeatedly that they are not cherry-picking who they're helping out, that they don't know who the people they're advocating for actually supported, and for all they know they're helping out Franken-voters.

So much for that argument.

Flip-Flop, Flip-Flop, Flip-Flop

On Wednesday, we quoted Coleman's attorney, Ben Ginsberg --- he of the successful Bush v. Gore FL 2000 strategy of fighting to not count votes, due to cherry-picked Equal Protection arguments --- as admitting that "both campaigns have taken positions in the past that are not entirely consistent with what they are now."

He claimed, at the time, "that is frankly irrelevant." But Franken's team argued yesterday that it isn't.

His attorneys have been arguing that the Coleman team has been arguing in favor of inclusion of ballots now, during the contest phase, based on reasoning that they are on record as having previously rejected them during the hand-count phase. They can't, Franken's team argued, have it both ways, according to the legal doctrines of estoppel and invited error which, essentially say (we welcome attorneys who wish to explain it better in comments) that if they did not make the argument previously, they can't now do so now that they've discovered such an argument might benefit them.

Franken's team details some of the Coleman team's flip-flops on ballots that they'd previously rejected during the hand-count phase, as summarized by Kleefeld thusly:

• A ballot was rejected [by Coleman, during the hand-count phase] because the witness failed to fill in their address. This past Monday, Coleman attorney Joe Friedberg was arguing that a lighter standard should be used to include ballots such as these.

• A ballot was affirmed by the Coleman camp as being properly rejected because the voter failed to sign their absentee application, but were given the ballot anyway. Yesterday, Friedberg was saying this sort of state negligence wasn't a specific legal reason to throw out a vote.

• The voter included their registration card inside the special secrecy envelope for the ballot, rather than outside that envelope. Friedberg was arguing yesterday that these ballots should be included.

• The signature on the ballot envelope didn't match the one on the application. The Coleman team now believes extra leniency should be applied in matching up signatures --- even going so far as to advocate for a man who admits that someone else forged his signature on the application.

Yesterday, however, Coleman's lawyers seem to have effectively made a similar case against Franken, arguing that his team is now doing the exact same thing, and arguing against the inclusion of certain ballots, rejected due to technical procedural failures by voters, that they had previously argued should not disqualify such ballots from being counted.

Coleman Finally Gains Some Ground

In regards the Equal Protection strategy now being applied by Coleman's camp to argue that more ballots should be counted now (in contradiction to Ginsberg's 2000 argument, which contended that was reasoning for counting none of them), Keefeld notes that today they may finally be making some headway in that regard, as an election official has admitted on the stand that there may be some ballots out there which were rejected in some counties due to a procedural problem, while in other counties, such ballots were eventually accepted and counted.

As well, there is one other area where Coleman may be finding some purchase, according to Kleefeld's late afternoon report, following the close of Day 5 today.

"After a week of one comedic misstep after another, the Coleman legal team seems to have finally gotten its act together and managed to score some points," he reports. He's referring to the other key element, beyond the rejected ballots, in Coleman's legal case. That is, the claim that several hundred ballots from Election Night were improperly counted twice during the post-election hand-count, "thanks to a duplication process for damaged ballots and a failure to label them properly."

We'll try to offer more details on that issue in the future, though while Coleman may have made some headway in his case on that point, it is, as Kleefeld notes, a potentially risky strategy for him to take, given the number of votes involved, and given that Franken may be able to toss it right back at them.

"Listen," Coleman is quoted as having said at a presser, stating the obvious, "there's a lot of irony in this process."

Calling All Rejected Voters

Finally, for the moment, on the heels of the "cherry-picked voters" allegations from Franken, Coleman has launched a new strategy which may --- as with several of his witnesses earlier this week --- end up backfiring on him, eventually.

He has now posted the name, and in many cases, the precise city, of every voter in MN whose ballot was rejected, online at his Coleman for Senate website.

That new strategy, however, has also opened up several new cans of worms.

The webpage claims that Coleman is fighting to ensure "that no voter is disenfranchised in the process or has their vote improperly rejected."

It further says, in full, unabashed hypocrisy mode: "Unfortunately, the Franken campaign continues their efforts to block any additional votes from being counted. In fact, the Franken campaign has now filed a legal motion asking that no additional absentee votes be reviewed, opened or counted. This from a campaign that used to make 'count every vote' their mantra–at least until it was no longer politically convenient for them."

But that strategy may backfire, as Kleefeld explains:

By including every last rejected ballot, regardless of backstory or merit, they are including ballots they themselves earlier objected to counting, under the state Supreme Court's controversial decision that gave the candidates a veto power over improperly-rejected absentees --- and they're now saying it's the Franken campaign who is disenfranchising these people.
And remember, the Coleman campaign's position until the last few weeks was that none of these ballots should ever be counted

But that's not the only way the strategy may have backfired...

Crashed, Burned and Hacked

A controversy --- several of them actually --- erupted earlier this week, following the publishing of Coleman's new database of rejected voters which he claimed, was "inundated by tens of thousands of hits today – temporarily crashing the website."

But the site didn't crash, according to Aaron Landry at MN Publius. "The stunt is a completely fabricated lie," meant only to raise attention to his list of rejected voters, said Landry, who offered evidence that Coleman's IT specifically set the site in order to make it appear that it had crashed.

Paul Schmelzer at Minnesota Independent has more technical details on the allegedly phony website crash.

Ironically enough --- in consideration of where today's report began, with Coleman's assertion that he was eager to get back to the Senate to "work on ways to make it easier for young people to vote online," the brouhaha over the supposed crash has also revealed how stupid that would likely be.

According to another Minnesota Independent article, investigation into the website crash, has revealed "a database of campaign donors (complete with names, email addresses, phone numbers and donation amounts) in a publicly accessible, unprotected directory."

Moreover, "the database included the usernames of registered site users, along with their unencrypted passwords, a potentially serious security concern for users who, like many of us, have a master password for various online accounts," according to Schmelzer.

Heckuva job, Normie! Let's get those voters casting ballots online as soon as possible! You think this election contest is a mess?! Let's go to the Internet! What could possibly go wrong?!!