Diary

MN-Sen: Coleman Files Additional Counting Errors

Four interesting, yet separate filings were issued today regarding the Minnesota Senate Election Contest. I will first cover the Coleman campaign’s reaffirmation of their intent to focus on potential voting anomalies:

TO: The Honorable Judges of the above-named Court, Al Franken, Contestee.

1. As stated in Contestants’ Notice of Contest dated January 6, 2009, Contestant
Cullen Sheehan believes and states that Contestants cannot properly prepare their case for trial
without an inspection of Ballots and Election Materials relating to the office of United States
Senate in the General Election, including, without limitation, all Ballots and Election Materials
in the precincts described hereinabove.

2. Contestant Cullen Sheehan therefore requests this Court to order such inspection
pursuant to Minnesota Statutes § 209.06 and to implement procedures for appointment of
inspectors on behalf of Contestants and Contestee pursuant to Minnesota Statutes § 209.06.

3. Contestant Cullen Sheehan further believes and states that Contestants cannot
properly prepare their case for trial without a recount of the Ballots in certain precincts pursuant
to Minnesota Statutes § 209.06 and therefore request this Court to order such recount relative to
those precincts identified by Contestants.

4. The precincts to be inspected and/or recount are as identified within Exhibit A
through Exhibit E attached hereto.

Source: Verified Petition For Appointment of Inspectors via MNCourts.org [PDF]

The Coleman campaign is essentially asking the court to appoint inspectors with the power to examine whatever ballots the Coleman campaign wants to evaluate. A brief summary of the Exhibits referenced above follows:

EXHIBIT A

PRECINCTS WHERE DOUBLE COUNTING OCCURRED
DUE TO DUPLICATE/ORIGINAL PROBLEM

[214 ballots are listed in 38 precincts across 9 counties.]

EXHIBIT B

PRECINCTS WHERE BALLOTS WERE NOT COUNTED DURING THE RECOUNT
DUE TO SECRETARY OF STATE INTERPRETATION OF RULE 9

[39 ballots are listed in 12 precincts across 6 counties.]

EXHIBIT C

PRECINCTS WITH MORE BALLOTS COUNTED THAN PERSONS VOTING ON
ELECTION NIGHT; CHAIN OF CUSTODY QUESTIONS

[372 ballots are listed in 20 precincts across 11 counties.]

EXHIBIT D

COUNTIES/PRECINCTS WITH FEWER BALLOTS COUNTED
THAN PERSONS VOTING ON ELECTION NIGHT

[76 ballots are listed in 7 precincts across 6 counties.]

EXHIBIT E

PRECINCTS WITH OTHER IRREGULARITIES DURING THE RECOUNT

[17 ballots are listed in 9 precincts across 5 counties.]

Source: Affidavit of Matthew W Haapoja – Counsel for Contestants via MNCourts.org [PDF]

In total, the affidavit lists 718 ballots in 86 precincts across 21 counties. Of these 718 ballots, 586 ballots (as listed in Exhibit A and C) correspond to the apparent discrepancy between the number of voters on Nov 4th and the final recounted total. Recalling from our complete precinct data table, there appear to 1391 ballots that meet the specifications set forth by the Coleman campaign in regard to the aforementioned 586 ballots.

The increase in the number of anomalous votes presented by the Coleman campaign illustrates a potential realization within their campaign. Based upon yesterday’s court hearing and the subsequent motions by Franken, it appears as though the Coleman campaign is building a safeguard against the possibility of the three judge panel ruling against their request to have rejected absentee ballots re-available for review as requested in Article 22 of the election contest and in Article 7 of affidavit filed by Matthew W Haapoja.

If we also recall Exhibit C from Coleman’s Election Contest and our corresponding article, it is highly probable that the ballots listed within Exhibit A and Exhibit C of this latest filing heavily favor Coleman. If each request associated with these 586 ballots is granted, I believe Coleman would take the lead. Coleman has specified an additional 460 anomalies, above and beyond the 126 first laid out within the election contest. Based upon our simple extrapolation of the 126 original anomalies, Coleman should gain about 51 votes. While I have not repeated the calculations for these additional 460 precincts, I think it is reasonable to assume that these ballots have a high likelihood of benefiting Coleman.

The scenario under which Coleman could take the lead represents an unbalanced scenario; if Franken were to submit an equal number of ballots, the effect of Coleman’s additions would likely be negated based upon the composition of the 1391 ballots I have previously identified.

The table below illustrates the information presented within Exhibit B of the affidavit filed by Matthew W Haapoja:

[The County, Precinct and Number of Ballots Potentially at Issue columns are listed within Exhibit B; the Nov 4th Voters, Recount Total and Coleman Margin (%) columns have been appended using data from our PDF.]

COUNTY/PRECINCT         BALLOTS AT NOV 4TH  RECOUNT COLEMAN
                           ISSUE    VOTERS   TOTAL  MARGIN %
Anoka/Spring Lake Park 1A    3        895     892    -3.13
Dakota/Burnsville P11*       1       2016     2017    7.07
Dakota/Farmington P1*        1       1016     1017    3.54
Dakota/Lakeville P10        11       2549     2538    30.3
Hennepin/Bloomington W4-P6*  9       1951     1950   -3.79
Hennepin/Brooklyn Park WEP8  1       1898     1897    15.1
Hennepin/Edina P11           4       1845     1841    4.89
Hennepin/Maple Grove P6      3       2047     2044    24.4
Itasca/Comfort**             1        601      600    18.3
Ramsey/Roseville P2          1       2423     2422   -7.68
St Louis/Duluth P16          1       1531     1530   -28.9
St Louis/Hermantown P3       3       1831     1828   -8.81

*If the proposed corrections were to be made, the resulting total number of votes counted would exceed the number of voters recorded on election day.

**There is no “Comfort” precinct in Itasca. There is a “Comfort” in Kanabec County; the Kanabec data is used.

Within Exhibit B, the Coleman campaign is not only asserting that 39 ballots were erroneously ignored, but that twelve additional ballots, across three precincts, were cast above and beyond the number of voters present on election day. The Coleman campaign has long argued that a discrepancy between the number of voters and the number of counted votes is reason for concern; they appear to be suggesting that other votes were double counted in these three precincts.

The second filing comes not from the Coleman campaign, or the Franken campaign, but instead is an intervention from seven voters who received notification on January 8th, 2009 that their absentee ballots were not counted. Within the eleven page document, their lawyers, Bruce D. Kennedy and Mark Priore, request that the courts intervene during the election contest to review these ballots; they also request that any legal fees be reimbursed under the equal protection clause. The first paragraph of their claim follows:

TO: The Honorable judges of the above-named Court, Norm Coleman, Contestant,
Cullen Sheehan, Contestant; and AI Franken, Contestee.

PLEASE TAKE NOTICE that [seven citizens]
desire to collectively intervene in this action pursuant to Minn. R. Civ. P. 24.01 and
24.02; and that in the event of objection, they will move this Court for an order granting
leave to intervene as a party in this action as soon as the parties may be heard. In the
absence of objection by an existing party to this action within 30 days after service of
this notice on that party, such intervention shall be deemed to have been accomplished.

Source: Notice of Intervention via MNCourts.org [PDF]

It’s tough to determine the allegiance of these seven voters especially given the views put forth by Bruce D. Kennedy, their representation. I find it probable that these seven voters do not represent a single constituency.

The third document presented to the election contest court centers on the issue of privacy protection; the document is 75 pages. The filing doesn’t appear to contain any election specific requests, but rather attempts to establish standards by which information should be cited and presented while upholding privacy and data practice laws.

The three judge panel will, in theory, present their ruling of Wednesday’s motion to dismiss, tomorrow (Friday) at 12:00 PM CT. During the Friday hearing they will also hear Coleman’s version of the headshot, the Motion for Summary Judgment. The entire request is literally presented below and essentially states that the court should just grant all of Coleman’s requests and declare Coleman the winner:

Petitioners respectfully request this Court grant judgment as a matter of law in their favor
as follows:

1. Directing that Petitioners’ absentee ballots shall be opened and counted
immediately, and the total be declared and certified, for such use as might be appropriate by the
United States Senate, this Court in the above-captioned matter, or any other proper use under
law; and

2. Granting Petitioners such other relief as the Court deems just and appropriate.

Source: Petitioners’ Amended Notice of Motion and Motion for Summary Judgment via MNCourts.org [PDF]

This request by Coleman has zero chance of success, or the same chance as Franken’s earlier motion for instant victory. Like Franken, Coleman seems to be introducing other beneficial evidence, as described above, into the election contest through the Motion for Summary Judgment.

Update [9:09 AM CT]: The courts have denied Franken’s motion to dismiss the election contest; this ruling was posted after midnight local time. This is not a surprise. The court cited two main items supporting their decision:

II. Contestee AI Franken’s Motion to Dismiss Is Denied

a. The Court Is Vested with Jurisdiction to Hear an Election Contest

i. Motion to Dismiss Legal Standard
ii. The Court’s Exercise of Jurisdiction is Constitutional
iii. The Court Has Jurisdiction Pursuant to Minnesota Statute § 209.12.

b. Contestants’ Notice of Contest Is Sufficient to Withstand a Motion to Dismiss

The Court finds the Notice of Contest sufficiently Specifies the grounds on which the
contest will be made pursuant to Minnesota Statute § 209.021, subd. 1, specifically referencing
absentee ballots, missing ballots, and ballots that were counted twice. Viewing the Notice of
Contest in light of relevant case law and construing the facts alleged in the light most favorable
to Contestants, the non-moving party, Northern States Power, 122 N.W.2d at 3D, the Court finds
the Notice of Contest puts Contestee on notice of the grounds of the contest and affords him a
fair opportunity to rebut the asserted claims. See Greenly, 395 N.W.2d at 90; Christenson, 119
N.W.2d at 39. Therefore, the Court finds the pleading sufficient to survive a motion to dismiss.

Source: Order on Contestee’s Motion to Dismiss via MNCourts.org [PDF]

The court destroyed Franken’s claim, and they are likely to reach the same conclusion after hearing Norm’s similar, Motion for Summary Judgment later today.

Update [3:44 PM CT]: The MN Election Contest Court published another ruling from yesterday’s hearing regarding Coleman’s request to have both original and rejected absentee ballots deposited with the court. The motion, by Coleman, was denied:

At the hearing on this matter on the morning of January 22,2009, Contestants
stated that their primary reasons for requesting an inspection under Minnesota Statute ?
209.06 were to narrow the issues for trial and compare voter rolls to the number of votes
cast in a precinct Contestants conceded that they would be able to prove their case
without an inspection by calling election judges as witnesses, subpoenaing voter rolls,
and subpoenaing ballots. The parties already viewed the ballots during the recount
process. Given that the trial oftbis matter must begin on January 26,2009, the Court is
not convinced that another inspection ofthe ballots is efficient or needed to prepare for
trial.

Source: Order – relating to Inspection of Ballots and Other Relief with attached Memorandum via MNCourts.org [PDF]

The Coleman campaign can still however subpoena this information (or attempt to) through the election contest process slated to begin next Monday, the 26th of January. The Election Contest Court has not yet reached a decision regarding today’s Summary of Judgment Motion; I will publish an analysis of their decision, when it becomes available.