Guest Blogged by Ernest A. Canning

During a news conference yesterday (video here courtesy of TheUptake.org) Marc Elias, representing Sen.-elect Al Franken in the election contest brought by former Sen. Norm Coleman, announced the filing of Franken’s brief [PDF] responding to Coleman’s appeal [PDF] of the decision by the tri-partisan, three-judge election contest panel’s ruling which found: “Franken received the highest number of lawfully cast ballots in the November 4, 2008 general election for United States Senator and is entitled to receive the certificate of election.”

Noting that, because of its ability to make credibility determinations, a trial court’s factual findings are entitled to “great deference” in an appeal, Elias observed that Coleman had a “heavy burden” in showing that the three-judge panel erred on the facts and the law. He says it’s a burden the Coleman team has not met in their appellate arguments. Elias noted that the legal contentions made in Coleman’s opening brief were “virtually identical” to those that were made and rejected by the three-judge panel.

We discussed Coleman’s arguments, and the three-judge panel’s rejection of them, last month in ‘For Coleman, the End is Near…’. As our legal analysis detailed, we agree with Elias’ May 11, 2009 assertion that the Coleman legal challenge is “without merit.”

For example, per Elias, Coleman attorney Ben Ginsberg continues to tell the media that 4,400 uncounted absentee ballots were improperly rejected, but as we observed…

Elias noted that during the contest trial, Coleman’s legal team conceded, and the three-judge panel found, that all but 700 of those ballots were cast by individuals who were not even registered to vote at the time of the November 2008 election. So how can any court order those ballots opened and counted?

Coleman attempted to put a new spin on the argument by urging that application of Minnesota’s strict statutory standards for determining which ballots shall be counted, resulted in a denial of due process. Elias argues that Coleman waived the due process argument by failing to raise it until closing arguments before the three-judge panel and that the case cited by Coleman in his appellate brief actually says the reverse is true — that due process would have been denied if the three-judge panel had replaced the statutory standards that required a ballot-by-ballot examination with Coleman’s lax standards that would have allowed in votes without an individualized showing that each absentee ballot had been lawfully cast.

Oral arguments before the Minnesota Supreme Court are set to commence, finally, on June 1, 2009 at 9:00am Central time. They will be available to watch live via video stream right here.

Elias announced that Franken has asked the MN Supremes to affirm the district court decision, declare that Franken is entitled to a certificate of election; that judgment be entered immediately and that the Republican Governor Tim Pawlenty and Democratic Secretary of State Mark Ritchie be ordered to perform their “ministerial duty” to prepare, countersign and deliver the certificate of election promptly to the secretary of the U.S. Senate. In order to expedite that decision, Franken waived appellate costs, a move that would avoid a ten day delay following the MN Supreme Court’s decision. Franken has not waived the award of costs from the contest trial.

More observation elsewhere on Franken’s brief in reply to Coleman:
• Election Law’s Rick Hasen
• MinnPost’s Eric Black
• TPM’s Eric Kleefeld
• NewsMax (wingnut site)

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Ernest A. Canning has been an active member of the California State Bar since 1977 and has practiced in the fields of civil litigation and workers’ compensation at both the trial and appellate levels. He graduated cum laude from Southwestern University School of Law where he served as a student director of the clinical studies department and authored the Law Review Article, Executive Privilege: Myths & Realities. He received an MA in political science at Cal State University Northridge and a BA in political science from UCLA. He is also a Vietnam vet (4th Infantry, Central Highlands 1968).