VoteForAmerica.net Syndication

John Thune's (R-SD) Math

12/23/2009 4:51:44 PM CT

The Senate voted by 60 - 39 to limit debate on the health care bill, setting up a vote for final passage tomorrow at 7am ET. Debate continues on the bill this evening. Source: C-SPAN.org

As part of this continuing debate, the minority (the Republican caucus) was allotted one hour for remarks. As part of these remarks, Sen. David Vitter (R-LA) asked that the bloc be divided evenly among several members of the Republican caucus. John Thune (R-SD) received the third segment which can be viewed in its entirety below.

Sen. Thune directed much of his ten minute address to the issue of the deficit. He began by presenting convoluted percentages of non-defense budget spending over the preceding several years. He was attempting to illustrate that the Democrats contributed more to the deficit and that our current deficit is not attributable to President George W. Bush or the Republican party. He then lifted a blank presentation board and a marker. Next, he began to write numbers, in billions of dollars, relating to the Congressional Budget Office's estimate of the Healthcare bill's cost. The first number represented the CBO's estimated surplus ($132 B), over a ten year period, resulting from the implementation of the Senate's Healthcare bill. The next few lines depict Sen. Thune's interpreted inaccuracies of the CBO's estimate. Sen. Thune then adds the 132 billion to his list of erroneous estimates and makes an arithmetic error:

   132 - 200 - 72 - 47 = -177

His numbers don't add up to -177; the correct computation yields -187. We have a US Senator attempting to illustrate why the CBO is wrong and he can't add four numbers of three digits or less together. Simply stunning. But perhaps what's even more stunning is that nobody caught this error; either in the planning stages or during the remaining remarks.

House Passes Healthcare

11/7/2009 10:38:55 PM CT

The US House or Representatives officially passed H.R. 3962, The Affordable Health for America Act, at 11:15 PM ET upon the confirmation of the tally by House Leader Nancy Pelosi (D); although the qualifying number of votes were cast 8 minutes earlier: The final vote was 220 Ayes to 215 Nays: The lone Republican voting for the measure was Rep. Joseph Cao of Louisiana's Second District. The House adjourned until Monday at 6 PM, after a fourteen and a half hour session. There will probably be several press conferences from each party at some point; you can watch live on CSPAN.org or check your local TV Listing for the channel number in your area. Update [12:25 AM, CT 9/8/2009]: Immediately following the passage of the bill, and before the Democratic press conference, CSPAN fielded callers from around the country. Below is one of these such exchanges:

@6:08 Announcer: Lets hear what you have to say about the debate today. This is Pam in San Diego, California against the bill; go ahead. Pam: Yeah. My name is Pam, and I am very much against any bill, on any kind of insurance, because insurance is not an airbag to protect you. Insurance does not buy healthcare; there is something, just, infinitely wrong with the idea that doctors are actually taking care of people. [emphasis added] Source: CSPAN.org Video Library

The bolded text above is probably the most vile and incompetent critique of healthcare reform possible. Insurance does buy healthcare, in fact it's the purpose of having insurance; you spend money, i.e. you buy insurance, and in turn, you receive healthcare. Insurance is the exchange of money for access to healthcare within a distributed stress system. The general concept of insurance places roughly equal burden upon all participants in exchange for assistance when a statistical anomaly occurs, such as cancer. Insurance buys access to, in this example, healthcare for cancer; this healthcare is probably not affordable, without insurance, for the average American [pg. 5]. Secondly, the purpose of doctors is to take care of people; which I thought was a common sense notion, but apparently I was wrong. The Hippocratic Oath, the corner stone of ethical medicine, seems to hint at a doctor's need to care for their patients:

... I will apply dietetic measures for the benefit of the sick according to my ability and judgment; I will keep them from harm and injustice. ... Whatever houses I may visit, I will come for the benefit of the sick, remaining free of all intentional injustice, of all mischief and in particular of sexual relations with both female and male persons, be they free or slaves. ... Source: PBS NOVA

The statements by Pam above, are without a doubt, the most ignorant things I have ever heard relating to the healthcare debate.

Final Projections (2009)

11/3/2009 3:59:49 PM CT

There were no new polls released today, so I'm calling the polling projections final. The first graph for each state uses our traditional methodology, while the second graph incorporates every poll, regardless of partisan affiliation: Remember, the point of our projections is not to predict the winner, but rather to access the accuracy of public polling. That being said, the hope is that our projections are accurate under the assumption that the polls were accurate. You can follow the returns live at each states' respective Secretaty of State website; I've included links below: Virginia
New Jersey (this link is sketchy, but I'm assuming they'll update the page.)
California CD-10 (not updated yet)
New York CD-23 (not updated yet)
Minnesota: St. Paul Mayor | Minneapolis Mayor I'll also be recording the historical real-time result; I'll try and post a graph every hour or so depicting the vote totals as a function of time.

Poll Update (11/2)

11/2/2009 8:48:41 PM CT

There were twenty-seven new polls since last week's update:

Race	Pollster	EndDate	Dem	Rep	Other
2009 New Jersey Governor	Monmouth University, Gannett	11/1/2009	43	41	16
2009 New Jersey Governor	SurveyUSA	11/1/2009	42	45	13
2009 New Jersey Governor	Quinnipiac University	11/1/2009	40	42	18
2009 New Jersey Governor	Democracy Corps (D)	11/1/2009	41	36	23
2009 New Jersey Governor	Public Policy Polling (D)	11/1/2009	41	47	12
2009 New Jersey Governor	Monmouth University, Gannett	10/30/2009	42	43	15
2009 New Jersey Governor	YouGov, Polimetrix (D)	10/30/2009	43	41	16
2009 New Jersey Governor	Neighborhood Research (R)	10/29/2009	35	42	23
2009 New Jersey Governor	Stockton College, Zogby	10/29/2009	40	39	21
2009 New Jersey Governor	Rasmussen Reports	10/29/2009	43	46	11
2009 New Jersey Governor	Research 2000, DailyKos (D)	10/28/2009	41	42	17
2009 New Jersey Governor	Democracy Corps (D)	10/28/2009	43	38	19
2009 New Jersey Governor	SurveyUSA	10/28/2009	43	43	14
2009 New Jersey Governor	Fairleigh Dickinson, PublicMind	10/28/2009	39	41	20
2009 New Jersey Governor	Quinnipiac University	10/26/2009	43	38	19
2009 New Jersey Governor	Rasmussen Reports	10/26/2009	43	46	11
2009 New Jersey Governor	Public Policy Polling (D)	10/26/2009	38	42	20
2009 Virginia Governor	SurveyUSA	11/1/2009	40	58	2
2009 Virginia Governor	Public Policy Polling (D)	11/1/2009	42	56	2
2009 Virginia Governor	YouGov, Polimetrix (D)	10/30/2009	40	53	7
2009 Virginia Governor	Richmond Times, Mason Dixon	10/29/2009	41	53	6
2009 Virginia Governor	Research 2000, DailyKos (D)	10/28/2009	44	54	2
2009 Virginia Governor	Rasmussen Reports	10/27/2009	41	54	5
2009 Virginia Governor	Roanoke College	10/27/2009	39	55	6
2009 Virginia Governor	SurveyUSA	10/26/2009	41	58	1
2009 Virginia Governor	Public Policy Polling (D)	10/26/2009	40	55	5
2009 Virginia Governor	Virginia Commonwealth University	10/25/2009	36	54	10

I'm not going to spend a whole lot of time discussing the gubernatorial elections, because I plan to do that tomorrow, but I will leave you with a few thoughts to ponder and the latest polling projections: I'll first address the obvious; New Jersey is very close and Virginia isn't. McDonnell (R) could win by 20% while Corzine (D) or Christie (R) could win by 20 votes. There is no automatic recount in New Jersey, but any candidate can request a recount within 15 days of the election. Secondly, Sarah Palin has injected herself into the New Jersey fray with a statement on facebook:

Despite what candidate Chris Daggett is claiming, I have never contacted him or his campaign. I have never asked him to drop out of the NJ Governor's race. Now, if a politician is going to play loose with facts like this, the electorate needs to know it. So, to the good people of New Jersey, please know that Daggett's claims are false. I?ve never even suggested he should drop out of the race. But, come to think of it? - Sarah Palin Source: Sarah Palin on Facebook.com

Nobody inclined to vote for Daggett (I) gives two shits what Palin thinks, about anything. In fact her innuendo, for Dagget to drop out, would definitely not help Christie. The most recent Quinnipiac University poll of New Jersey asked which second candidate Daggett voter's preferred; Corzine led by 10%, 39 to 29. Another recent poll by Public Policy Polling (D) made the same determination. Daggett is helping Christie at this point, but Palin is too stupid to realize this. Obama also campaigned for Corzine over the weekend. The cover of today's New York Times prominently displayed Obama and Corzine in a traditional rally pose. This is definitely positive exposure for Corzine and could translate into votes, although New Jersey does not have same day registration. And finally, the campaign fundraising reports from New Jersey I promised last week:

                 Corzine (D)     Christie (R)     Daggett (I)
Receipts      $ 24,057,600.20  $ 11,720,288.00  $ 1,312,632.00
Expenditures  $ 23,645,190.76  $  8,804,745.66  $ 1,161,907.13
Cash on Hand  $    412,409.44  $  2,915,542.34  $   150,724.87

Submission Date: 10/23/2009

Source: New Jersey Election Law Enforcement Commission Corzine clearly won the fundrace, but will it translate to a victory tomorrow evening? I'm waiting until tomorrow to post the final projections as there are likely polls in the field today that will be released tomorrow. I'll have updated graphs, as well as my final thoughts before the polls close tomorrow at 8 PM ET in New Jersey and 7 PM ET in Virginia. There are also a number of other elections tomorrow with intriguing ramifications. There are two elections to fill US House vacancies, CA-10 and NY-23. NY-23 is a Republican district with ~~three~~ two major candidates after the moderate Republican withdrew and endorsed the Democratic candidate to spite the National Republican Party. CA-10 is a solidly Democratic district with a PVI of D+11; this distinct will be won by Democrat Lt Gov. John Garamendi. A number of other states also have referendums and propositions on the ballot. More tomorrow.

Poll Update (10/26)

10/26/2009 10:20:11 PM CT

Nine new polls as the elections loom a week away:

Race	Pollster	EndDate	Dem	Rep	Other
2009 New Jersey Governor	Suffolk University	10/25/2009	42	33	25
2009 New Jersey Governor	SurveyUSA	10/21/2009	39	41	20
2009 New Jersey Governor	Democracy Corps (D)	10/21/2009	42	39	19
2009 New Jersey Governor	Rutgers University	10/20/2009	39	36	25
2009 New Jersey Governor	Rasmussen Reports	10/19/2009	39	41	20
2009 Virginia Governor	Washington Post	10/25/2009	44	55	1
2009 Virginia Governor	Public Policy Polling (D)	10/19/2009	40	52	8
2009 Virginia Governor	SurveyUSA	10/19/2009	40	59	1
2009 Virginia Governor	Christopher Newport University, Virginian-Pilot	10/13/2009	31	45	24

I know I mentioned this last week, but the New Jersey graph looks almost identical to the 2008 Minnesota Senate Election and the addition of a Daggett (I) trendline to the New Jersey Graph below solidifies my point: Christie's (R) decline seems to be linearly associated with Daggett's surge while Corzine's (D) support has remained consistent. The most recent sample points do however illustrate a departure from this correlation; Dagget's and Christie's numbers have declined in the last week while Corzine's have increased. Christie's earlier support seems to have migrated to Daggett, and now that Corzine is back in the race, some Daggett voters are shifting to their second choice, Corzine. In the next week I expect a minor Christie resurgence, and a solidification of Daggett's support around the 15% threshold. I expect both major party candidates to head into next Tuesday's election hovering around the 40% mark. Virginia is another story, Deeds (D) has all but lost: Deeds was dominated in the money race, and had perception issues during the debates; the last of which occurred on Tuesday, October 20th:

Deeds and McDonnell were generally polite, although they interrupted each other several times in a series of feisty exchanges made possible by an open-ended format. When the moderator asked Deeds which taxes he would support increasing, McDonnell tried to jump in: "I can answer that!" "No, you can't!" Deeds responded, glaring at McDonnell before saying that he would consider raising any tax tied to transportation funding. Still, the lively 60-minute debate appeared to do little to change the dynamics of a race in which Deeds trails McDonnell in public opinion polls, fundraising and advertising. The questions covered mostly familiar ground, and there seemed to be no game-changing moments. Source: Washington Post

The last pre-election fundraising reports were due on Wednesday; the highlights are below:

                 Deeds (D)       McDonnell (R)
Receipts      $ 16,264,941.15   $ 21,466,447.67
Expenditures  $ 15,327,168.54   $ 19,633,513.91
Cash on Hand  $    937,772.61   $  1,832,933.76

Filing Period: 10/01/2009 - 10/21/2009

Source: Virginia State Board of Elections Deeds was basically defeated in every aspect of the campaign, and his polling numbers reflect these various deficiencies. Our mathematical projection gives Deeds less than a 1% chance of victory, and from a purely logical standpoint, this seems realistic. Deeds has lost, unless something absurd happens. New Jersey also conducted their final debate last week on Thursday, October 22nd:

The third and final debate in the tightening New Jersey governor's race turned into something of a free-for-all on Thursday night as Gov. Jon S. Corzine tried to portray the state's battered economy as poised for a slingshotlike recovery, while his Republican rival, Christopher J. Christie, depicted him as lamentably out of touch. But the two were constantly harassed by a pesky Christopher J. Daggett, the independent candidate, who pointed to a new poll that showed him within striking distance, and who taunted Mr. Corzine and Mr. Christie over property taxes, corruption and the environment. The hourlong debate, broadcast on the jazz station WBGO in Newark, broke little new ground, but allowed the three men to deliver their closing arguments. Source: New York Times

The latest fundraising filings from New Jersey have not yet been posted, although the 11 day deadline has passed. Hopefully the data will be available next week. In the meantime you can read through last period's reports at the New Jersey Election Law Enforcement Commission. Corzine bankrolled his own campaign, while Christie and Daggett relied upon matching public funds. As a result Corzine had the capability to out raise his opponents, which he has done up to this point and I see no reason why this trend when end with the release of the new data. More in a week for our probably last polling update. I'll also, hopefully, have a few other surprises.

Poll Update (10/19)

10/14/2009 2:03:16 AM CT

A number of polls out of New Jersey, and a single from Virgina:

Race	Pollster	EndDate	Dem	Rep	Other
2009 New Jersey Governor	SurveyUSA	10/14/2009	39	40	21
2009 New Jersey Governor	New York Times	10/14/2009	40	37	23
2009 New Jersey Governor	Rasmussen Reports	10/14/2009	41	45	14
2009 New Jersey Governor	Quinnipiac University	10/12/2009	40	41	19
2009 New Jersey Governor	Public Policy Polling (D)	10/12/2009	39	40	21
2009 Virginia Governor	Rasmussen Reports	10/12/2009	43	50	7

Based upon the frequency of new surveys, most pollsters seem to have given up on the Virginia Gubernatorial election. Deeds (D) has led in just two polls since January, and currently trails by about seven points. Corzine, on the other hand, has done a much more effect job of closing his summer gap. Both states had debates in the last week, but they're unlikely to make or break November's voting. I'll start with the Virginia debate which took place last Monday evening. The debate appears to have been fairly boring, with little fanfare. Bloomberg provided a pretty good round up, from which I've excerpted below:

During the debate, McDonnell (R) sought to tie Deeds (D) to the push by the Obama administration to reduce emissions blamed for global warming through a limited number of permits that companies could trade and sell. McDonnell said the plan would raise utility costs by $1,700 per family, a claim that the Annenberg Public Policy Center's Factcheck.org has said is "not true." Deeds said McDonnell "wants this campaign to be decided on issues he's going to lie about." Source: Bloomberg

The issue of taxes seemed to have been largely ignored as was McDonnell's old graduate thesis. The focus of the debate was the state's economy; Deeds stated that Clinton and Obama better served the state's economy while McDonnell stated that the Bush's had done a better job. It's interesting that McDonnell explicitly stated that he support Bush era policies even though the state in which he is seeking has office voted against Bush's party for the first time in 44 years. The New Jersey candidates participated in a recorded debate last Friday, which was later broadcast on Saturday. The New York Times published an excellent synopsis of the debate:

Gov. Jon S. Corzine (D) chastised his two rivals (Christopher J. Christie, the Republican, and Christopher J. Daggett, the independent) for "trying to pretend that the recession is only in New Jersey," and warned that Mr. Christie would offer tax cuts to wealthy individuals and big businesses at the expense of middle-class families. Mr. Daggett criticized the governor's policies on taxes and spending and ridiculed Mr. Christie for proposing a variety of tax cuts without explaining what budget cuts he would use to pay for them. ... Mr. Christie, who focused most of his critique on Mr. Corzine, was not about to be upstaged by Mr. Daggett, who put in a strong performance in the first debate and has seen his poll numbers rise while Mr. Christie has seen his drop. Source: NY Times

Corzine appears to be aptly positioned to take the lead heading into the final weeks as Dagget continues to poll strongly. It's neck and neck, but Christie is trending in the wrong direction. The New Jersey race strongly mirrors Minnesota's 2008 Senate contest based upon the trend lines and the emergence of a legitimate third party candidate. There is tentatively one more Virginia debate, and the potential for two more New Jersey debates; the next of which will be on Thursday. More in a week.

Poll Update (10/12)

10/12/2009 6:37:54 PM CT

Numerous polls from this week, and a few last releases from last:

Race	Pollster	EndDate	Dem	Rep	Other
2009 New Jersey Governor	Neighborhood Research (R)	10/8/2009	35	36	29
2009 New Jersey Governor	Democracy Corps (D)	10/7/2009	41	38	21
2009 New Jersey Governor	SurveyUSA	10/7/2009	40	43	17
2009 New Jersey Governor	NJ Assoc of State Colleges & Univ.	10/5/2009	38	43	19
2009 New Jersey Governor	Rasmussen Reports	10/5/2009	44	47	9
2009 New Jersey Governor	Fairleigh Dickinson	10/5/2009	38	37	25
2009 New Jersey Governor	Research 2000, DailyKos (D)	9/30/2009	42	46	12
2009 Virginia Governor	Richmond Times, Mason Dixon	10/8/2009	40	48	12
2009 Virginia Governor	Washington Post	10/7/2009	44	53	3
2009 Virginia Governor	SurveyUSA	10/4/2009	43	54	3

Nothing fundamentally changed; Corzine (D) still modestly trails while, Deeds (D) remains further behind: I first want to talk about the upcoming debate in Virginia. The debate started at 8 PM ET today, and is sponsored by the League of Women Voters and AARP. If you live in the Virginia viewing area, the debate should be broadcast on the NBC affiliate. This is a big stage for Deeds; he needs to directly address the issue of taxing as it relates to his transportation plan. He stumbled last debate and it appears to have hurt him in the polls. He must clarify his position if he still hopes to emerge victorious in just three short weeks. Moving North up the Atlantic Coast, the Lieutenant Gubernatorial candidates in New Jersey debated last Thursday. NJ.com has a brisk recap if you're interested. The discussion was apparently very heated and at times focused on Christie's (R) heavy set physique. I don't think this debate matters in any way shape or form. It's an off year election where most of the voting population probably hasn't tuned into the top of the ticket debates, to think that the Lieutenant Governor's debate affects public opinion is probably a step too far. Then on Saturday, the New Jersey Star-Ledger endorsed their candidate:

The Star-Ledger today endorses independent candidate Chris Daggett and recommends his election as the next governor of New Jersey. The newspaper's decision is less a rejection of Gov. Jon Corzine and Republican Chris Christie than a repudiation of the parties they represent, both of which have forfeited any claim to the trust and confidence of the people of New Jersey. They share responsibility for the state's current plight. Source: Star-Ledger Editorial Board at NJ.com

This is excellent news for Corzine, perhaps better than had he himself been endorsed. Dagget (I) appears to be drawing a fair amount of support away from Christie, while Corzine's baseline has remained steady. Dagget's (I) support seems to have consolidated after his esteemed debate performance on the first of the month. The next NJ debate takes place this Friday, October 16th. The three leading candidates will again take the stage, but this time at William Patterson University. The debate will be broadcast on TV and online through the NJ Network (PBS). I'll try and update the graphs to reflect Dagget's numbers but I'm not making any promises. More in a week.

Poll Update (10/5)

10/5/2009 11:36:00 PM CT

The latest round of Virginia polling accounts for September 18th's gubernatorial debate, while New Jersey's candidates hosted their first debate last Thursday:

Race	Pollster	EndDate	Dem	Rep	Other
2009 New Jersey Governor	Monmouth University, Gannett	9/29/2009	40	43	17
2009 New Jersey Governor	Quinnipiac University	9/28/2009	39	43	18
2009 Virginia Governor	Rasmussen Reports	9/29/2009	42	51	7
2009 Virginia Governor	SurveyUSA	9/29/2009	41	55	4
2009 Virginia Governor	Public Policy Polling (D)	9/28/2009	43	48	9

The current NJ projection will likely change when the public reaction from the first debate is factored into the polling; but for now Christie (R) still leads: I haven't watched the entire NJ debate, but a complete video is available [NJ Network] as well as a summary from the Washington Post. From what I have watched, the following exchange, as summarized by the Washington Post, reflects the dynamics of each candidate and the three main choices New Jerseyans will have come November 3rd:

If the race turned only on Corzine's record, he would probably lose. But Christie has vulnerabilities as well. He is a former U.S. attorney who made his reputation prosecuting politicians of both parties, and he has used those skills to prosecute the case against the incumbent. But he has yet to offer a credible plan to solve the budget woes. The next governor will face a budget deficit estimated at $8 billion. Christie has pledged he will not raise taxes, but cannot say how he would balance the budget without new revenue. He has identified possible areas, to cut but they fall short of what is necessary to get the job done. Corzine and independent candidate Chris Daggett scoffed at Christie's remedies. "Mr. Christie has no plan," Corzine said. "It's a fantasy." Daggett, who would cut some taxes but also significantly expand the state sales tax, chimed in: "It's easy to criticize when you have no plan of your own. . . . The tooth fairy is not going to come to solve this problem." Source: Washington Post

The New Jersey election seems to have been reduced to the following question: Would you rather stay on the current path, or try something completely new and unquantifiable? In the 2008 presidential election, New Jerseyans choose the later, by electing Obama, but will they remain loyal to the incumbent Democrat? This week we've seen a big change in Virginia polling. Last week the race was within two points, now there's a thirteen point spread: The National Review Online seems to attribute this sudden rise by McDonnell (R), and subsequent decline by Deeds (D) to a post-debate press conference. During the debate Deeds stated that he would "not raise taxes" to pay for his transportation plan, but afterward he appeared to flounder on the issue as evidenced in the following video: Creigh Deeds simply needed to take a position on whether to raise taxes to pay for his transportation plan, and he imploded. I don't think either position would have necessarily hurt him politically, but choosing and then changing his position definitely wasn't a good idea. The next debate is October 12th, and he better be prepared to clarify his position, by simply choosing a position, or he will lose this election. More in a week.

Poll Update (9/28)

9/28/2009 7:54:06 PM CT

The polling from New Jersey coalesced during the past week, while Virginia's numbers still seem to be transitioning:

Race	Pollster	EndDate	Dem	Rep	Other
2009 New Jersey Governor	Democracy Corps (D)	9/23/2009	39	40	21
2009 New Jersey Governor	Rasmussen Reports	9/21/2009	41	48	11
2009 New Jersey Governor	Strategic Vision (R)	9/20/2009	38	46	16
2009 Virginia Governor	InsiderAdvantage	9/23/2009	44	48	8

Corzine (D) still trails by about seven points, but the last time the trend lines were parallel he was down by ten; Corzine has consolidated a net gain of three points in the last month. He will need to increase this rate of change within the next thirty-six days to win, but the race is clearly beginning to shift toward the Democrat in typical New Jersey fashion: The single new poll from Virginia simply serves to confirm the trend of the previous week. Deeds (D) is down by about two with a month left and anything could happen; but for the moment, McDonnell (R) has the advantage: This week I want to focus on the debate schedule for each gubernatorial election; I'll begin with Virginia. The Deeds and McDonnell campaigns have been pushing for various changes to the debate schedule, but for the moment there looks to be four debates scheduled. Two have already happened, but more on that later. Here's the current schedule:

Date                  Location           Recap
July 27th          VA Bar Assoc        WA-Times
September 12th*   Radio One Forum
September 17th      Fairfax COC     Times-Dispatch
October 12th         LWV/AARP
October ??             WSLS

[*] Appears to have been canceled.
Source: Bob McDonnell Press Release

Both Virginia campaigns are still debating about the debates, so things may change going forward, but for now this is the schedule. Now onto New Jersey and their more organized debate schedule. There are two debates sanctioned by the New Jersey Election Law Enforcement Commission and potentially two more commissioned by the New Jersey Media markets:

Date             Sponsor        Location
October 1st      NJ ELNC      NJ Network TV
October 16th     NJ ELNC      Will Pat. Univ
October 22nd     WBGO FM          Radio
October ???*     ABC Affil      TV 7-8 PM

[*] Negotiations ongoing, Corzine (D) has
    not committed.
Source: NJ.com

Independent candidate Chris Dagget will also participate in all debates held within New Jersey. There will also be a debate between the Lieutenant Governor candidates on October 8th sponsored by the Leadership New Jersey Consortium. If you live in either New Jersey or Virginia I would highly encourage you to participate in the electoral process by watching or listening to the debates. More in a week.

Poll Update (9/21)

9/21/2009 6:49:40 PM CT

The tide has definitely shifted in the Commonwealth of Virginia with four new polls, as New Jersey's data remained fairly stagnant over the last week:

Race	Pollster	EndDate	Dem	Rep	Other
2009 New Jersey Governor	Neighborhood Research (R)	9/17/2009	33	37	30
2009 New Jersey Governor	Public Policy Polling (D)	9/14/2009	35	44	21
2009 Virginia Governor	Washington Post	9/17/2009	47	51	2
2009 Virginia Governor	Research 2000, DailyKos (D)	9/16/2009	43	50	7
2009 Virginia Governor	Rasmussen Reports	9/16/2009	46	48	6
2009 Virginia Governor	Clarus Research Group	9/14/2009	37	42	21

I really have nothing to say about New Jersey; Corzine (D) continues to trail having only lead in one partisan poll since February. Corzine has clearly solidified his base around 40, but Christie (R) has lost ground in the last month, likely due to the US Attorney's loan scandal. We really need more data to determine whether Christie's downside will continue. Virginia's 2009 Gubernatorial election just got interesting. Three non-partisan pollsters showed the race within five points at some point during the last week. The election is basically neck and neck according to our projection: The reason for McDonnell's (R) decline can almost certainly be traced to his 1989 thesis in which he stated that working women were "detrimental" to the family. Deeds' (D) effort to highlight this apparent weak point clearly paid dividends in the polls. I took a look at the two polls that provided publicly available cross tabs, Rasmussen Reports and the Washington Post in an attempt to glean more information about Deeds' surge. The basic post-thesis hypothesis is that Deeds' performance should have increased in the female voting bloc; unfortunately neither poll provided any gender specific information, at any level. More in a week.

Poll Update (9/14)

9/14/2009 10:48:59 PM CT

Three new polls from New Jersey, none from Virginia:

Race	Pollster	EndDate	Dem	Rep	Other
2009 New Jersey Governor	Monmouth University, Gannett	9/10/2009	39	47	14
2009 New Jersey Governor	Democracy Corps (D)	9/9/2009	38	41	21
2009 New Jersey Governor	Rasmussen Reports	9/9/2009	38	46	16

Our projection didn't really change based upon these newest polls, but you can clearly see the race beginning to tighten: I don't have too much to say about this batch of polls as a whole, they all seem to acknowledge the current trends, but the Monmouth poll does contain some interesting auxiliary information. Monmouth University and Gannett conducted a data rich poll and actually divided their results based upon their assessment of a person's likelihood of voting on November 3rd. They released a likely voter sample and a registered voter sample; the results for each segment is below:

             Corzine (D)  Christie (R)  Dagget (I)
Registered     41%          40%           6%
Likely         39%          47%           5%

Corzine actually wins among registered voters, but gets drilled when voting likelihood is factored. The Monmouth report, linked above, addressed this issue:

Murray [of Monmouth] described the findings this way: "We know that voters who are less likely to go to the polls tend to be somewhat more Democratic in their leanings. However, we rarely see more than a few points difference in the ballot test results for all registered voters compared with just likely voters. The fact that such a notable discrepancy has shown up in two consecutive polls indicates that there is a decided lack of enthusiasm for the incumbent among the Garden State electorate. While we acknowledge that most of these 'unlikely' voters will never cast a ballot in this race, if the Corzine team can bump up turnout on Election Day by just a few percentage points, their chances of victory greatly increase." "At this point, the likely voter result is our best estimate of where the dynamics of this race stand at this time. We provide the registered voter results in the interest of furthering our understanding of the entire New Jersey electorate's concerns and motivations. The bottom line is that turnout always matters. It just may matter more in this election than usual." Source: Monmounth University/Gannet Sept 10th Poll of NJ [PDF]

The report did not specify the criteria used for determining whether a voter was likely to vote; this appears to have been determined by Braun Research, the telephone data collection agency used in the survey. This information is typically proprietary, but there are some generally accepted methods of determining voting likelihood. There are two main ways to determine the past voting record of an individual; you can either directly ask them, or you can make inferences based upon publicly available voter registration databases. The Help America Vote Act of 2002 requires that states maintain an Statewide Voter Registration System (SVRS) and New Jersey is no exception; the list is public data, but is typically restricted to political uses. As a result, polling firms could request and then use this data to determine the recent voting pattern of an individual. If they voted in the last election, they may be flagged as a likely voter; other criteria is probably used, but this should give you a general idea as to how the separate samples are determined. The question of turnout still however remains and until the votes are counted, we will never definitively know who will vote and who won't. More in a week.

Sen. Grassley on Healthcare

9/8/2009 11:56:06 PM CT

Senator Charles Grassley (Iowa), the ranking Republican on the Senate Finance Committee, was nice enough to sit down with C-SPAN's Washington Journal show yesterday morning [9/8/09]. Sen. Grassley answered phone calls and questions pertaining to the health care debate. The full length video is presented below, and I would encourage you to watch it in its entirety. I have however excerpted crucial exchanges which I believe to be representative of Sen. Grassley's position as the main antagonist to health care reform. There are five main points that I would like to highlight from the roughly thirty three minute video. Each point is bolded within the excerpt; I'll respond to these bolded portions following each excerpt. You can also listen to the excerpt by advancing the slider bar in the video above to the corresponding time listed at the beginning of each excerpt. The first excerpt is below:

[TIME: 00:21:24] HOST: Let's go to Jonathan on the Republican's line, and he's calling from Wilmington, North Carolina. Go ahead Jonathan. CALLER: Thank you and good morning, and thank God for C-SPAN. Senator Grassley, the first question I would like to ask you is how long you have been a member of Congress? GRASSLEY (R, IA): This is my fifth term.... CALLER: This is your fifth term; so we're going on 30 years. Is that correct? GRASSLEY: This is my fifth term....Yes. CALLER: And six year terms, thats coming up on 30 years. When was the last time you had to decide whether you were going to buy food or health care for your children? Your salary in the Senate is about eight times what the average American makes. And to be honest, you live in a bubble and do not realize what the average American goes through. GRASSLEY: You asked me when the last time was. It would be from 1961 to 1971 when I was a member of the International Association of Machinists. I was an assembly line worker making furnace registers at Waterloo Register Company, Cedar Falls Iowa; and I spent ten years putting screw holes in furnace registers. During that period of time I had to worry about whether I was going to buy food or other things. And that was two jobs I had at that particular time. HOST: And did you struggle with health care at that time, with insurance? GRASSLEY: Well, I suppose I was like 20 year old people and early 30 year old people right now. I was never going to get sick, I never had any need for [health care]. So I think that I was probably, during that period of time, even though my company had a plan for us to join, I think I was seven or eight years of the ten years I spent there before I signed up for the health insurance plan.¹ If you're working where they have health insurance and you're 20 to 30 years old and you think you're never going to get sick, maybe that's true, but if you have a chance to have health insurance, you outta take it.² About four to five million people, of the 50 million people that don't have health insurance, are people that fall into that category of 20 to 30 years old. Source: CSPAN: Senator Grassley on Congressional Agenda

1. I would argue that Sen. Grassley's health care situation in the 1960s and '70s is financially incomparable. He stated that he earned $15,000 at some juncture between 1961-1971 later in the segment, so I'll use that amount for comparison purposes and assume that it was 1971. Several different metrics reveal that $15,000 in 1971 is worth about 60k in 2003 terms. Health care in 1971 cost $342 per capita and increased to $5,711 in 2003 according to the non profit Kaiser Family Foundation; a respected authority on health care research. Using the aforementioned data for 1971 and 2003 respectively we can show that the cost of health care as a percentage of Sen. Grassley's income quadrupled between 1971 and 2003. If 2009 data were available, the difference would likely be larger. It is, using 2003 dollars, currently four times more difficult to afford insurance than it was in 1971, using Sen. Grassley's situation. To illustrate this point graphically, I've plotted national health care expenditures as a function of national Gross Domestic Product (GDP) over time. You'll notice that the GDP cost of health care has roughly doubled in the past 40 years: Source: US Department of Health and Human Services [*.zip 4KB] No matter what metric is used, health care is more expensive today than in years past. The increase in health care costs have outpaced the increase in wages during the same time period, thus leaving segments of the population with no alternative. Health care has simply become too expensive for some Americans and I think the general public has acknowledged this issue; Grassley appears to be an exception. 2. This is by far Sen. Grassley's most interesting statement of the entire interview/show. He presents a redundant set of logical tests governing the process of acquiring health care. He concludes that if somebody has access to health care, they should get health care. His initial logic can further be reduced to: if you have the capacity to afford health care, you will have health care; if you can't afford health care, you don't have health care. I know the situation is more complex than a binary choice scenario, but the fact that Sen. Grassley used if to proceed his statement highlights the need for reform. The ability to obtain health care within one's means should be a fundamental right, there should be no if. An individual's desire for health care treatment should not depend upon their, or anybody else's, financial situation. The right to affordable health care supports our declared right to life. The second excerpt follows and piggy-backs upon the first:

[TIME: 00:30:10] HOST: Let's go to Dee on the Democrats line calling from New Jersey. Go ahead Dee. CALLER Good morning. GRASSLEY: Good morning. CALLER: I just have a couple of things and a couple of questions. One is, a minute ago you said that it was 1971 the last time you had to worry about providing food for your family and for paying for health care. GRASSLEY: Yeah, let me explain why that was that way. Because prior to that time I was making about 15,000 dollars and then being elected to Congress and then making 42,000 at the time; that doubled my income.³ CALLER: Well sir, since that time, health insurance premiums have gone up about 400% for one thing, and the manufacturing base has been decimated since that time. There are fewer manufacturing - I mean the world has changed since then. So, that time, while relevant to you, is not relevant to most Americans who are struggling with those choices today. Secondly, you continue, and I've seen this in your town hall meetings, you continue to castigate Canada and other countries with single payer health care; well Canada is number six in life expectancy in the world. Japan where I lived for seven years, has single payer health care and is number two in the world. Singapore is number three and they have a system where they have private insurance competing with a public option and it has driven down costs in both directions. GRASSLEY: Well go to England, where people don't live as long as they do in the United States if they have cancer or go to Canada where you gotta wait three months to have an MRI. So if you have a headache, do you want to wait three months to find out if you have a brain tumor. Or why do so many people come across the lines to have MRIs when they can afford to get it right now. Why do you have to wait in line for a long time to have hip and knee replacement compared to what you have in the United States.⁴ Government run plan has x number of dollars they're going to spend on health care and when those x number of dollars don't go far enough then they erase you. So when you have a political decision and you only have one choice, the government's choice, and what we're trying to do here for the 50 million people that don't have health insurance is to give them choice by putting them into private insurance plans and that's why we don't want a public option. Because every expert on the subject says says that tens of millions of people, the lowest figure I've seen is 83 million, the highest figure I've seen is 120, are going to be pushed out of their health care plan into a government run plan. And when you do that, you soon have, everybody else's premiums go up, and pretty soon other people opt out and then pretty soon you have what the Congresswoman from Illinois said to a group that she was talking to who wanted a Canadian style single payer. We have to have a public option first because the American people won't go from what they have now to what they have in Canada so we have to have this interim stop over. But you know what their goal is? Their goal is to have the government run everything. And I don't think the government does a very good job of running the postal service for instance. So should they be running health care?⁵ Source: CSPAN: Senator Grassley on Congressional Agenda

3. Sen. Grassley has already falsely compared his plight to that of others, now he's providing his excuse; money. Sen. Grassley fails to comprehend the intricacies of his own health care situation. He has been a member of Congress since 1974, at which point he qualified for the Federal Employee Health Benefits Program (FEHBP) of 1959; the plan does not provide government run healthcare it simply provides "the widest selection of [private] health plans in the country." Sen. Grassley hasn't had to worry about health care, in the same since as most American's, for the last 35 years because of this program. It also doesn't hurt to make more than 95% of the general population. Either one of these circumstances explains Sen. Grassley's inability to relate to the imperativeness of health care reform. 4. I think the caller makes a good point, although his factual assertions are slightly off base; for example Japan is third in average life expectancy, not second. The caller's main point was that these other countries with nationalized health care actually produce a higher standard of living, at least in terms of life expectancy, than does the US. Sen. Grassley was very dismissive of this argument and eagerly presented counter examples to the caller's claims. Sen. Grassley instantly focused on areas where these systems are inferior to the USA, rather than focusing on their advantages. I don't want you to tell me what doesn't work, or won't work, I want you to support what does work or could work. Japan, Singapore and Canada are obviously doing something right, as designated by their average life expectancies, it is your job as a Senator to determine what it is in order to better our country. 5. Grassley apparently doesn't know shit about the post office. If the health care plan passes and is as successful as the post office, 82% of American's will support its implementation.

Poll Update (9/8)

9/8/2009 1:27:57 PM CT

Today, the day after labor day, symbolically marks the start of the general election campaigns for Governor in New Jersey and Virginia. The urgency of each campaign will intensify as the voting population more strenuously begins to weigh their options. In the last week, five new polls have entered into the public domain, each of which seems to confirm the previous weeks' trend:

Race	Pollster	EndDate	Dem	Rep	Other
2009 New Jersey Governor	Quinnipiac University	8/30/2009	37	47	16
2009 New Jersey Governor	Fairleigh Dickinson	8/30/2009	42	47	11
2009 Virginia Governor	SurveyUSA	9/3/2009	42	54	4
2009 Virginia Governor	Rasmussen Reports	9/1/2009	42	51	7
2009 Virginia Governor	Public Policy Polling (D)	8/31/2009	42	49	9

Corzine (D, NJ) seems to have gained a few points in the last week, likely owing to Christie's (R, NJ) US Attorney General debacle. The New York Times presented an article on August 18th, detailing Christie's involvement in an unreported loan to a US Attorney. The Philadelphia Inquirer succinctly stated Christie's involvement:

This week, after a report on NJN public television, Christie acknowledged that he had failed to properly disclose lending a subordinate in the U.S. Attorney's Office $46,000. He admitted not paying taxes on the interest he received, and said he would correct his tax returns and financial-disclosure filings. Christie's replacement in the office, Ralph Marra, is under investigation, according to the Associated Press, to determine whether he made inappropriate public comments in support of Christie's campaign. And this month, it was disclosed that Christie had spoken to Karl Rove, a top strategist under President George W. Bush, about a possible run for governor. Democrats immediately accused Christie of violating the Hatch Act, which bars federal employees, including U.S. attorneys, from engaging in political activities. Source: Philidelphia Inquirer

Chrisitie's involvement in these incidents has now been know for over 20 days, but he still maintains a significant lead in the polls. New Jerseyans tend to shift toward the Democratic candidate as the election approaches, so this race may still tighten; but for the moment Christie appears to have dodged a crucial issue. On another New Jersey front, Independent candidate Chris Daggett released his first TV ad on Monday highlighting his ability to solve problems. When Daggett is included in the poll, the spread between Corzine and Christie is significantly less. While the Republican in New Jersey recently faced scrutiny, the storm seems to have passed; Bob McDonnell's (R, VA) is likely just beginning. On August 31, The Washington Post rehashed McDonnell's 1989 thesis as a graduate student at Regent University:

At age 34, two years before his first election and two decades before he would run for governor of Virginia, Robert F. McDonnell submitted a master's thesis to the evangelical school he was attending in Virginia Beach in which he described working women and feminists as "detrimental" to the family. He said government policy should favor married couples over "cohabitators, homosexuals or fornicators." He described as "illogical" a 1972 Supreme Court decision legalizing the use of contraception by unmarried couples. Soucre: The Washington Post

McDonnell's thesis obviously takes a position against working women, which will likely hurt him among, well, working women. The ramifications of McDonnell's thesis have not yet been acknowledged in the form of a public poll. A poll detailing the aftermath of the Post's reporting has simply not been commissioned. Although the SurveyUSA poll was taken during Sept 1-3, I don't think the story had become widely understood during this time period. McDonnell continues to hold a substantial lead, and his Democratic opponent Creigh Deeds will no doubt focus on the thesis. McDonnell has since released a TV ad in response to the thesis issue; the ad basically contains political unicorns and rainbows. If McDonnell can get past his thesis, much like Chrisite overcame his unreported loan, the election is still easily within his grasp. Obama will speak to Congress tomorrow at 8 PM ET on the subject of Health Care Reform; I would encourage everybody to watch his speech. More in a week.

Poll Update (8/31)

8/31/2009 10:56:34 PM CT

Two new polls from New Jersey, but nothing from Virginia:

Race	Pollster	EndDate	Dem	Rep	Other
2009 New Jersey Governor	Democracy Corps (D)	8/26/2009	41	43	16
2009 New Jersey Governor	Rasmussen Reports	8/25/2009	42	50	8

There seems to be divergence amongst pollsters regarding the closeness of this race. Two partisan polls, the one from last week and the DemocracyCorps (D) poll from this week show the race essentially deadlocked. There has yet to be a poll from a pollster we consider to be non-partisan, that shows Corzine (D) within stricking distance as the two partisan polls suggest. Until the mainstream polls began to reflect a closer race, our projection will continue to favor Christie (R): Public Policy Polling (D) has their monthly Virginia poll in the works, so hopefully we'll have more Virginia data next week.

Poll Update (8/24)

8/24/2009 8:48:21 PM CT

Corzine (D) has apparently retaken the lead in the only new poll released in the last week; the poll is of questionable origins however:

Race	Pollster	EndDate	Dem	Rep	Other
2009 New Jersey Governor	Neighborhood Research (R)	8/21/2009	37	35	28

I found the associated polling report at PolitickerNJ.com along with the relevant description excerpted below. I've admitted the likely voter result into our database, as outlined within our methodology.

Republican Christopher Christie leads Gov. Jon Corzine 39%-36% among definite voters, according to a poll conducted by Neighborhood Research, a survey firm run by conservative strategist Rick Shaftan. Independent Christopher Daggett is at 6%. ... Among likely voters, Corzine leads Christie 37%-35%, with 6% for Daggett. [Emphasis added] "If Corzine gets his liberal/urban/Democratic base together he's going to open up a significant lead, forcing Christie to work the right," Shaftan wrote in his analysis. The poll was conducted between August 12-21 with a sample size of 319 and a margin of error of +/- 5.49%. The party breakout among respondents was 43% Democrat, 34% Republican, 23% unaffiliated. Source: PolitickerNJ.com

There are some concerns about the sample size and the error that raise questions about the accuracy of this poll. For example, I highly doubt Christie has an approval rating of 20 favorable and 27 unfavorable; a very high rejection rate of over 50%. The most recent Quinnipiac University poll of New Jersey gave Christie a favorability of 42 and an unfavorable result of 26; a more reasonable rejection ratio of about 30%. The results of this Neighborhood Research (R) poll may in fact be accurate, but the noted anomalies are too numerous to warrant serious consideration. Our projection remains unchanged due to the partisan affiliation of this newly inducted poll: If this poll were to be included into our projection, both candidates would converge around 38% with a very slight advantage to Christie. Virginia remained unchanged, polling wise. More in a week.

Senator Klobuchar's Tele-Townhall

8/23/2009 7:17:22 PM CT

Minnesota Senator, Amy Klobuchar (D) was supposed to have a tele-townhall today, at 7 PM according to her website:

U.S. Senator Amy Klobuchar will be hosting a live statewide tele-town hall meeting to discuss making health care more affordable and answer questions from her constituents. Joining her will be Dr. Denis Cortese, CEO of the Mayo Clinic in Rochester and Mary Wakefield, the highest ranking nurse in the federal government. The tele-town hall will be held on Sunday, August 23, 2009 at 7:00 p.m. Central Time. If you have registered and have not recieved [sic] a call by 7:10 pm or have questions, please call our office at 1-888-224-9043. Source: Senator Amy Klobuchar's Townhall Registration Website

I signed up on Wednesday and waited for my automated call about 20 minutes ago. The phone rang at exactly 7 pm, but instead of hearing the townhall, I heard another recorded message:

Hi I'm senator Amy Klobachar, Tonight at 7:00 I hosted a live statewide health care townhall to discuss ways to make the American health care system more affordable and more stable. I was pleased to be joined by Dr. Corteez, head of Mayo Clinic and Mary Wake Field the highest ranking nurse in the federal government. I'm so sorry I missed you but I'd like to invite you to listen to the audio recording of our townhall meeting. It's going to be posted on my website at Klobacher.senate.gov. You can also click on the 10 ways to talk to me about health care link on our website and that ways you can find out about up coming events like when I'll be at the State Fair and share your thoughts on this issue with me if you haven't already. I really appreciate you being a part of our discussion on health care. Thank you. [Call ended.] Source: VoteForAmerica.net [MP3]

Why was I unable to join the tele-townhall? I then called the office number as provided on her townhall registration in an attempt to remedy the error, but I heard another automated message:

Automated Voice: The mailbox belonging to... Amy Klobuchar: Senator Amy Klobuchar's Office... Automated Voice: Is full. To disconnect press 1, to enter another number press 2. Source: VoteForAmerica.net [MP3]

Why can Senator's voice mail-boxes fill up? Despite my inability to participate in the tele-townhall, TheUpTake.org is streaming the townhall live, right now.

Poll Update (8/17)

8/17/2009 11:44:26 PM CT

After three rough weeks of polling for Jon Corzine (D), the tide may be shifting if this week's polls are to be trusted. Creigh Deeds (D) of Virginia however, still appears to be stuck in the sand:

Race	Pollster	EndDate	Dem	Rep	Other
2009 New Jersey Governor	Democracy Corps (D)	8/12/2009	35	40	25
2009 New Jersey Governor	Quinnipiac University	8/9/2009	40	46	14
2009 Virginia Governor	Washington Post	8/14/2009	39	54	7
2009 Virginia Governor	Rasmussen Reports	8/10/2009	41	49	10

Chris Daggett, the Independent candidate in the New Jersey election, broke into the double digits for the first time in Democracy Corps' (D) latest poll. If Daggett can pull down 10% of the electorate, as James McCarville's Democracy Corps (D) poll indicates, Corzine may have a fighting chance. The New Jersey election is beginning to resemble the Minnesota Senate Election of 2008 where Dean Barkley, an Independence Party Candidate (not the same as Daggett) altered the electoral landscape by capturing the disillusioned major party voters. If Daggett's support holds in the coming weeks, the election comes down to base turn-out, and in New Jersey, that favors the Democrat. This of course is a big if because it's just one poll and a series of extrapolations; but at this juncture, it may be Corzine's best opportunity at re-election. The landscape in Virginia continued to grow darker for Democrat Creigh Deeds as two new polls confirmed his diminishing numbers. He's been down by at least eight for the past month, with no indication of a reversal. Deeds needs something good to happen before the close of September. Both Democrats are down in the polls, but where do they stand in the money game? Answer; in about the same position. I'll start by providing the latest fundraising numbers out of New Jersey as reported on Jun 22, 2009:

                 Corzine (D)      Christie (R)
Receipts      $ 4,539,006.04   $  5,363,054.33
Expenditures  $ 4,539,006.04   $  5,170,238.97
Cash on Hand  $         0.00   $    192,815.36

Source: New Jersey Election Law Enforcement Commission The figures above contain data from the close of the primary period. The leading candidates each filed their report electronically, but Corzine used an R1 form and Christie a G1; the reason for this difference is unclear, but they both contain the same information. Daggett has yet to file a finance report, as he was not involved in a primary election; a result of his Independent platform. The next report will be due on Oct 5, 2009 from all general election candidates in New Jersey. Each major party candidate raised and spent about the same amount leaving little to no cash on hand. And although Christie holds a slight monetary edge, I do not believe this significantly contributed to his nine point lead. Other factors are at play, but I'm sure the money will help as Christie tries to maintain his lead. Corzine has also been known to spend his own money, so if the race gets truly close, money may buy the deciding votes. I should also state that I am by no means an expert on campaign finance law within New Jersey, Virginia or any other state for that matter. With that being said lets move onto Virginia's fundrace as of Jun 30, 2009:

                  Deeds (D)      McDonnell (R)
Receipts      $ 6,207,533.60   $ 10,673,988.44
Expenditures  $ 3,486,182.65   $  5,753,365.35
Cash on Hand  $ 2,721,350.95   $  4,920,623.09

Source: Virginia State Board of Elections Deeds was out raised and out spent during the primary period but the raw data may misrepresent the fundraising dynamics of this gubernatorial election. The nearly 2:1 discrepancy can be explained by the presence of a rigorous Democratic Primary where the donors were split into three campaigns; as opposed to McDonnell's (R) coronation as the only interested candidate. The combined candidacies of the Democratic primary actually out raised McDonnell during this time period. The monetary advantage for McDonnell in the past couple of months likely played a major role in his recent surge. McDonnell was simply able to focus more time and money on the general election at an earlier point in time. The direct result of this conclusion translates into his comfortable lead in the polls. If Deeds and the DNC, along with Tim Kaine, can get the Democratic fundraising machine on track, the race will likely tighten, but Virginians may have already made up their mind. More in a week.

Poll Update (8/10)

8/10/2009 8:36:50 PM CT

Six new polls in the last week, and they each reaffirm the trend we started to see in our last report. The Democrats in each gubernatorial race face an uphill climb:

Race	Pollster	EndDate	Dem	Rep	Other
2009 New Jersey Governor	Research 2000, DailyKos (D)	8/5/2009	40	48	12
2009 New Jersey Governor	Rasmussen Reports	8/4/2009	37	50	13
2009 New Jersey Governor	Monmouth University, Gannett	8/2/2009	36	50	14
2009 New Jersey Governor	Global Strategy Group (D)	7/30/2009	35	42	23
2009 Virginia Governor	Research 2000, DailyKos (D)	8/5/2009	43	51	6
2009 Virginia Governor	Public Policy Polling (D)	8/3/2009	37	51	12

Virginia remains unchanged from a week ago due to the partisan affiliation of the two pollsters listed above, but our New Jersey model has since given Corzine (D) a 0% chance of reelection: The inclusion of this week's polls seemed to clarify the direction of each gubernatorial race. Corzine has all but lost, and Deeds (D) trails by a significant but non-critical margin. All four candidates know where they currently stand, two hope to maintain the status quo and two hope to change it. Because of this dynamic, the strategy becomes more important than the candidate. Let's take a quick look at each candidate's campaign manager: Maggie Moran, Corzine (D): This will be Maggie Moran's first foray into campaign management at any level, although she does have fairly extensive experience within the politicking world. She was a senior advisor during Corzine's first successful run at governor as a well as the NJ State Director for US Senator Franken Lautenberg (D) for several years. She clearly has political know how, but is it enough to erase the current deficit? Probably not. Bill Stepien, Christie (R): Bill Stepien has managed several successful state level campaigns for Republican candidates in New Jersey. He also managed Bob Frank's (R) failed bid for the US Senate in 2000 against Corzine. He was also the National Field Director for John McCain's and Rudy Giuliani's 2008 Presidential bids. Stepien clearly has the experience and the lead this time around. I would expect the Christie campaign to soften the dialogue in an attempt to prevent something stupid. Although the McCain and Giuliani campaigns melted down, Stepien wasn't responsible for the campaign's message, this time around he is. Can he avoid doing something catastrophically stupid? Probably. Joe Abbey, Deeds (D) Joe Abbey is another Democratic rookie, but he has considerably more experience than Moran. Abbey was the Deputy Campaign Manager for Mark Warner's (D) successful 2008 US Senate Election, a candidate who realistically didn't need a campaign manager. He has also ran a number of state level elections with varying degrees of success. If Abbey can run a successful issues based campaign and really promote voter turnout, Deeds should win. Whether this can actually be done remains the question. Phil Cox, McDonnell (R) There is relatively little information about Phil Cox, but a google search reveals possible connections with disgraced and now imprisoned lobbyist Jack Abramoff. These ties came up in the 2005 Virginia General Assembly Election in which Deeds lost to McDonnell by 350 votes; Cox was McDonnell's campaign manager in that race as well. Unless some new information emerges, this pseudo-scandal is unlikely to affect the Governor's race. More in a week. I'm tentatively planning to look at the money race.

Poll Update (8/3)

8/3/2009 7:18:06 PM CT

Just two new polls in the last week, one from each gubernatorial election, and each shows the Democratic candidate a significant distance behind:

Race	Pollster	EndDate	Dem	Rep	Other
2009 New Jersey Governor	Public Policy Polling (D)	7/27/2009	36	50	14
2009 Virginia Governor	SurveyUSA	7/28/2009	40	55	5

Last week I said Corzine (D) had run out of life lines, and that really hasn't changed; but now he is in better shape than his fellow Democrat in Virginia, Creigh Deeds. They each trail by more than 8 points according to our most up-to-date polling models: Deeds' deficit is almost entirely based upon the most recent poll at this point, in part due to our methodology and in part due to the spread of the most recent survey. Both of these factors may be artificially inflating McDonnell's lead. The SurveyUSA poll is in all likelihood an outlier, but our model doesn't know the difference; the most recent poll receives the most weight. The SurveyUSA poll may also be at fault; the sample appears to skew toward people who voted for McCain by about 9 points, but Obama won Virginia by 6 points last November. This demographic discrepancy would explain the sudden drop in support for the Democrat, or it could indicate that many Obama voters don't care to participate in the off year election as SurveyUSA screens for likely voters. Corzine is screwed, he's lost the Democratic establishment in New Jersey:

WNBC-TV's Brian Thompson reported last night that South Jersey Democratic Leader George Norcross wants Corzine to drop his re-election bid so that the party can replace him on the ballot. Some Democrats are worried that Republicans might win their first statewide election in a dozen years. One Corzine advisor acknowledged that he has heard talk among Democrats about the governor changing his mind about re-election, but says that Corzine is not considering a withdrawal. Source: WNBC-TV via PolitickerNJ.com

There are several possible replacements in the hangar and some pollster appears to be conducting a what if replacement poll for Corzine. More in a week.

Poll Update (7/27): Governor Preview

7/27/2009 7:58:10 PM CT

The odd year election cycle of 2009 is fast approaching with two gubernatorial races entering the national scene. New Jersey and Virginia will steal the '09 spotlight, but several large cities will conduct mayoral elections and at least one House Seat will be up for grabs. The depth of public polling is however limited to the two Gubernatorial elections for the moment, and I don't suspect this will change. I've compiled gubernatorial election polling released so far in 2009 and applied our projection methodology. The resulting conclusions, along with each poll, is depicted in the graphs below. The graphs are dynamically updated upon the inclusion of a new poll, and embeddable. The complete list of polling data is available on our Polls and Graphs page with the gubernatorial elections prefixed with "2009" on the Race drop down list. HTML Code:


<a href="http://voteforamerica.net/polls.aspx?Race=2009 New Jersey&Election=Governor#Results"><img src="http://voteforamerica.net/chart.aspx?State=2009 New Jersey&Election=Governor" alt="VoteForAmerica.net 2009 New Jersey Gubernatorial Election" border="0" /></a>

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<a href="http://voteforamerica.net/polls.aspx?Race=2009 Virginia&Election=Governor#Results"><img src="http://voteforamerica.net/chart.aspx?State=2009 Virginia&Election=Governor" alt="VoteForAmerica.net 2009 Virginia Gubernatorial Election" border="0" /></a>

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[url=http://voteforamerica.net/polls.aspx?Race=2009 Virginia&Election=Governor#Results][img]http://voteforamerica.net/chart.aspx?State=2009 Virginia&Election=Governor[/img][/url]

I've got two quick pieces of analysis, one for each state and I'll preface my comments by stating that I know very little about each state and next to nothing about the candidates. I can however provide demographic and historical perspectives. Let's begin with New Jersey; Democratic Incumbent Jon Corzine currently trails by about 8 percent. A back-analysis of our 2008 Senate projections reveals that just two candidates overcame an 8 percent deficit in mid-July and they were both the challenger rather than the incumbent; Hagan (D) in North Carolina and Merkley (D) in Oregon. A Corzine victory would not be unprecedented, but given the political environment of an odd year election, where nobody cares, it seems unlikely. Our model currently gives Corzine just a 1.05% chance of victory. Virginia features a much more competitive, incumbent-less field in a state trending heavily blue. The Republican Candidate, Bob McDonnell currently has the upper hand as Creigh Deeds' primary bounce seems to be subsiding; but with that being said, neither candidate has obtained inevitability. The biggest wild card in this election will be the contribution of the Democratic National Committee which is currently chaired by the present Governor of Virginia, Tim Kaine. If Deeds and Kaine can effectively leverage the Democratic base in Virginia, they should easily win. McDonnell's strategy is simple, stay ahead and hope election fatigue sets in, thus diminishing Democratic turnout. In either case, the victor of the next month will likely be the victor at the end of three months. I'll post a polling update every Monday from now until November 3rd with the latest polls and analysis pertaining to the two gubernatorial elections of 2009. If another race produces fluid polling data, I'll incorporate that data as well, but I just don't see it happening.

Franken Wins, Coleman Concedes

6/30/2009 2:03:16 PM CT

The Minnesota Supreme Court affirmed the ECC's ruling, which declared Franken the winner, late Tuesday morning. The 32 page order, issued unanimously by the five presiding justices, marked the end of Minnesota's 2008 Senatorial Election. An excerpted summary of the order is presented below followed by Norm Coleman's concession speech:

Filed: June 30, 2009 ... SYLLABUS 1. Appellants [Coleman] did not establish that, by requiring proof that statutory absentee voting standards were satisfied before counting a rejected absentee ballot, the trial court's decision constituted a post-election change in standards that violates substantive due process. 2. Appellants did not prove that either the trial court or local election officials violated the constitutional guarantee of equal protection. 3. The trial court did not abuse its discretion when it excluded additional evidence. 4. Inspection of ballots under Minn. Stat. § 209.06 (2008) is available only on a showing that the requesting party cannot properly be prepared for trial without an inspection. Because appellants made no such showing here, the trial court did not err in denying inspection. 5. The trial court did not err when it included in the final election tally the election day returns of a precinct in which some ballots were lost before the manual recount. Affirmed. OPINION PER CURIAM. [Unanimous 5-0 decision.] Appellants, incumbent Republican United States Senator Norm Coleman and Cullen Sheehan, filed a notice of election contest under Minn. Stat. § 209.021 (2008), challenging the State Canvassing Board's certification that Democratic-Farmer-Labor challenger Al Franken was entitled to receive a certificate of election as United States Senator following the November 4, 2008 general election. After a trial, the three-judge trial court we appointed to hear the election contest issued its findings of fact, conclusions of law, and order for judgment, concluding that Franken received 312 more legally cast votes than Coleman and that Franken was entitled to a certificate of election for the office of United States Senator. The question presented on appeal is whether the trial court erred in concluding that Al Franken received the most legally cast votes in the election for United States Senator. Because we conclude that appellants have not shown that the trial cour's findings of fact are clearly erroneous or that the court committed an error of law or abused its discretion, we affirm. ... I We turn first to the question of whether Coleman's right to substantive due process under the United States Constitution has been violated. Whether Coleman's right to substantive due process was violated is a question of law, which we review de novo. State v. Netland, 762 N.W.2d 202, 207 (Minn. 2009). ... We conclude that our existing case law requires strict compliance by voters with the requirements for absentee voting. Thus, we reject Coleman's argument that only substantial compliance by voters is required. Having rejected this argument, we also conclude that the trial court's February 13 order requiring strict compliance with the statutory requirements for absentee voting was not a deviation from our well-established precedent. ... II We next examine Coleman's argument that the constitutional guarantee of equal protection was violated in this case.12 Coleman's equal protection argument is two-fold. First, he argues that the differing application and implementation by election officials of the statutory requirements for absentee voting violated equal protection. Essentially, Coleman contends that similarly situated absentee ballots were treated differently depending on the jurisdiction in which they were cast and that this disparate treatment violated equal protection. Second, Coleman contends that equal protection was violated when the trial court adhered to the statutory requirements for acceptance of absentee ballots, in contrast to the practices of local jurisdictions during the election. ... The trial court found that election judges applied the election laws in a consistent and uniform manner. The court found that election jurisdictions adopted policies they deemed necessary to ensure that absentee voting procedures would be available to their residents, in accordance with statutory requirements, given the resources available to them. The court also found that differences in available resources, personnel, procedures, and technology necessarily affected the procedures used by local election officials reviewing absentee ballots. But the court found that Coleman did not prove that these differences were calculated to discriminate among absentee voters. Our review of the record convinces us that the trial court's findings are supported by the evidence and are not clearly erroneous. As a result, we conclude that Coleman did not prove his equal protection claim. ... The trial court concluded that Bush is distinguishable in several important respects and, as a result, does not support Coleman's equal protection claim. We agree. In Bush, the Supreme Court specifically noted that it was not addressing the question of "whether local entities, in the exercise of their expertise, may develop different systems for implementing elections." 531 U.S. at 109. Variations in local practices for implementing absentee voting procedures are, at least in part, the question at issue here. As previously noted, the trial court here found that the disparities in application of the statutory standards on which Coleman relies are the product of local jurisdictions" use of different methods to ensure compliance with the same statutory standards; that jurisdictions adopted policies they deemed necessary to ensure that absentee voting procedures would be available to their residents, in accordance with statutory requirements, given the resources available to them; and that differences in available resources, personnel, procedures, and technology necessarily affected the procedures used by local election officials in reviewing absentee ballots. As we noted previously, Coleman has not demonstrated that these findings are clearly erroneous. ... III Coleman next contends that the trial court improperly excluded (1) evidence of absentee ballots accepted on election day and in the manual recount that would not satisfy the standards established by the trial court, and (2) evidence of disparities among jurisdictions in their application of the statutory standards governing absentee ballots. We review the trial court's evidentiary rulings for abuse of discretion. See Peterson v. BASF Corp., 711 N.W.2d 470, 482-83 (Minn. 2006). ... In enacting section 204C.13, subd. 6, particularly in light of our interpretation of the same language in Bell, the legislature made a policy decision to limit challenges to an absentee ballot, once it is separated from its return envelope and deposited in the ballot box, to challenges based on the face of the ballot. We conclude that the trial court ruled correctly that Minnesota law provides no remedy for wrongly accepted absentee ballot return envelopes once those envelopes have been opened and the ballots inside deposited in the ballot box. Accordingly, we conclude that the court did not abuse its discretion in excluding the evidence. ... As we have explained, in order to prevail on his equal protection claim, Coleman was required to prove intentional or purposeful discrimination on the part of either local election officials or the trial court. But Coleman does not contend that the additional evidence he sought to introduce would have proven intentional or purposeful discrimination on the part of any election officials or the trial court. We therefore conclude that in excluding this evidence, the court did not abuse its discretion. IV Coleman also claims that the trial court erred in denying his petition for inspection of ballots for certain precincts in which he alleges that double-counting of ballots occurred. The trial court concluded that Coleman had not met his burden to show that an inspection was needed to prepare for trial, noting Coleman's concession at the hearing on the petition that he would be able to prove his case without an inspection, by calling election judges as witnesses and by subpoenaing voter rolls and ballots. The court also concluded that inspections under Minn. Stat. § 209.06 (2008) are limited to the ballots themselves and do not include voter rolls or other election materials sought by Coleman. Finally, the court noted that the parties had already reviewed the ballots during the manual recount. ... Coleman conceded at the hearing on the petition for inspection, and does not dispute here, that he could prove his claim of double-counting by subpoenaing the ballots and election materials and by subpoenaing witnesses to testify. This concession negates any claim that he made the required showing of necessity and any contention that he was prevented from proving his case by denial of the inspection. Coleman called no witnesses with direct knowledge of the handling of duplicate ballots in the relevant precincts, but he did introduce at trial voter rosters, envelopes from accepted absentee ballots, copies of ballots challenged during the manual recount, and machine tapes from the identified precincts in which he alleges double-counting of absentee ballots occurred. On appeal, Coleman has identified nothing additional that an inspection of ballots under section 209.06 would have produced.21 We therefore hold that the trial court did not abuse its discretion in denying the petition for inspection. V Finally, Coleman contends that the trial court erred when it ruled that missing ballots from Minneapolis Ward 3, Precinct 1, were properly included in the State Canvassing Board's January 5, 2009 certification of legally cast votes. During the manual recount, election officials could locate only four of the five envelopes of ballots from Minneapolis Ward 3, Precinct 1. Voting machine tapes showed a total of 2,028 ballots cast and counted in the precinct on election day, but only 1,896 ballots from the precinct were available for the recount, a difference of 132 ballots. The State Canvassing Board determined that an envelope of ballots had been lost and, rather than certify only 1,896 votes in the recount, accepted the election day returns for that precinct. ... Coleman articulates no compelling reason why that same principle should not apply here. The ballots are missing, but Coleman introduced no evidence of foul play or misconduct, and the election day precinct returns are available to give effect to those votes. We hold that the trial court did not err in ruling that the election day precinct returns for Minneapolis Ward 3, Precinct 1, were properly included in the tally of legally cast votes. VI For all of the foregoing reasons, we affirm the decision of the trial court that Al Franken received the highest number of votes legally cast and is entitled under Minn. Stat. § 204C.40 (2008) to receive the certificate of election as United States Senator from the State of Minnesota. Affirmed. Source: Supreme Court Order via MNCourts.gov [PDF]

There are several interesting statements by the MN Supreme Court Justices, most notably the second excerpted paragraph under section III, but any relevance was minimized following Norm Coleman's fifteen minute address to the people of Minnesota: Within his concession speech, Norm Coleman congratulated "Senator Franken," thanked his supporters and addressed his political future with the following statement: "soon, I presume sometime, we'll get through July fourth, sometime next week. We'll talk a little about what my future is." Coleman also suggested that Governor Tim Pawlenty would sign the Election Certificate because "for all Minnesotans, this is a time to look forward." Al Franken is scheduled to address the media at 4:15 CT live on CSPAN. Update [4:24 PM CT]: "I'm not going to Washington to be the 60th Democratic Senator, I'm going to Washington to be the 2nd Senator from the State of Minnesota." Update [4:26 PM CT]: "I can't tell you when I'll be seated, but I think it'll be early next week." Update [4:27 PM CT]: "He [Coleman] couldn't be more gracious." Update [4:28 PM CT]: Al will be a member of the following committees, "Health Education Labor and Pensions which I'm very happy about. I'll be on Judiciary, I'll be Indian Affairs which I asked for and Aging; which I think dovetails nicely with Health Education Labor and Pensions." Update [4:29 PM CT]: "I will be entering with a great deal of humility." Update [4:30 PM CT]: "I hope we do get President Obama's agenda through." Update [4:32 PM CT]: "This [process] has been as thorough and as transparent and painstaking as possible." Update [4:33 PM CT]: "I'm going to be working for every Minnesotan and I'm going to be thinking about that everyday when I wake up." Update [4:33 PM CT]: "I probably won't be in Washington until early next week." Update [4:35 PM CT]: Franken's complete speech is available below: Franken will become the 100th United States Senator "early next week." The legal process is over, Minnesota has its second Senator.

A GOP Operative's Request

6/29/2009 1:52:24 PM CT

The Minnesota Supreme Court is still deliberating on Norm Coleman's latest appeal in the drawn out Senate Election of 2008; but at this point their ruling merely appears to be a legal formality. Even Minnesota's Republican Governor, Tim Pawlenty, has indicated his intent to adhere to the MNSC's ruling by signing the Election Certificate should Al Franken be declared the victor. With a ruling likely to come this week or next, Al Franken seems poised to become the legal victor, and there isn't anything anybody can do about it. Michael Brodkorb of MinnesotaDemocratsExposed.com does however seem intent on altering the public's perception. On June 8th, just five days before his election as the new Deputy Chair of the Minnesota Republican Party, he filed public data practice requests with seven of Minnesota's counties seeking photocopies of rejected absentee ballots. Mr. Brodkorb filed his two page request with the counties of Anoka, Carver, Dakota, Hennepin, Olmsted, Sherburne and Washington, and the cities of Edina, Minnetonka, Orono and Plymouth. The following excerpt contains the request sent to Anoka County:

Michael Brobkorb
[Poorly Redacted Address] June 8, 2008 Rachel Smith
Anoka County
325 E Main St W130
Anoka, MN 55303-2465
Re: Data Practices Request This correspondence is a request for access to public information and data relating to the 2008 general election for United States Senator in your county under the Minnesota Government Data Practices Act ("MGDPA"), Minnesota Statutes, Chapter 13. Minnesota Statutes § 15.17 requires all government entities to make and maintain all records relative to their official activities. Minnesota Statutes § 13.03, subdivision 1 requires all government entities to keep records that contain government data in a way (or ways) that makes the data easily accessible for convenient use. The undersigned requests copies of that portion of the front side of all ballots relative to the 2008 United States Senate general election contained within rejected absentee ballot envelopes in your possession that were not submitted late and were not submitted by persons who otherwise voted in the 2008 general election (either in person or by replacement absentee ballot). This request does not seek to have the undersigned open or unseal any absentee ballot envelopes; to the extent any such envelopes have not yet been opened, the undersigned requests that an election judge do so. This request also does not seek access to any data regarding any individuals, including voter registration applications, voter registration lists or any other information related thereto and subject to restricted access under Minnesota Statutes § 201.091. Finally, this request does not seek copies of the absentee ballot envelopes themselves or any accompanying materials, such as absentee ballot applications. In short, this request in no way seeks to ascertain which person(s) voted for which candidate(s). The request can be easily complied with while protecting the secrecy of the ballots. This information/data is clearly public information under the MGDPA. As you know, Minn. Stat. § 13.03, subdivision 1 provides that all government data collected, created, received or maintained is public information unless classified by statute, federal law or temporary classification as confidential, private, nonpublic or protected nonpublic data. No such classification exists for the information requested. No Minnesota statute provides that the ballots contained within uncounted rejected absentee ballot envelopes is nonpublic or private information if opened by an election judge; although Minnesota law requires you to securely maintain all election materials, no Minnesota statute exists which denies the public the right to inspect and/or receive copies of the ballots contained within rejected absentee ballot envelopes. As the agency with jurisdiction over all ballots and election materials within your county, it is your duty to comply with data practices requests under the MGDPA and the undersigned is not aware of any statutory or other authority which prohibits you from opening the rejected absentee ballot envelopes while maintaining the secrecy of each person's intended vote for the purposes of complying with this request. There is simply no risk whatsoever that the secrecy of any ballot(s) will be compromised. Again, this request seeks only a photocopy of the section of ballots relative to the 2008 general election for United States Senator contained within certain rejected absentee ballot envelopes in your possession or under your control and in no way seeks to ascertain which person(s) voted for which candidate(s). ... Thank you. Sincerely, Michael B. Brodkorb [emphasis added] Source: Data Practices Request to Anoka County via Minnesota Democrats Exposed [PDF]

There are several catastrophic assumptions and falsehoods located within Brodkorb's meager request. I've bolded the fallacious and contradictory portions from his request above and will now address each item below. Let's begin by addressing the issue raised within the first bolded portion; the need for an election judge to open the requested ballots. This triggers two questions, the first of which I will now address. It is necessary for an election judge to open the currently sealed and rejected absentee ballots because of MN § 13.37:

13.37 GENERAL NONPUBLIC DATA. Subd. 2. Classification. The following government data is classified as nonpublic data with regard to data not on individuals, pursuant to section 13.02, subdivision 9, and as private data with regard to data on individuals, pursuant to section 13.02, subdivision 12: Security information; trade secret information; sealed absentee ballots prior to opening by an election judge; sealed bids, including the number of bids received, prior to the opening of the bids; parking space leasing data; and labor relations information, provided that specific labor relations information which relates to a specific labor organization is classified as protected nonpublic data pursuant to section 13.02, subdivision 13. [emphasis added] Source: 13.37, 2008 Minnesota Statutes via Minnesota Office of the Revisor of Statutes 13.02 COLLECTION, SECURITY, AND DISSEMINATION OF RECORDS; DEFINITIONS. Subd. 9. Nonpublic data. "Nonpublic data" means data not on individuals that is made by statute or federal law applicable to the data: (a) not accessible to the public; and (b) accessible to the subject, if any, of the data. ... Subd. 12. Private data on individuals. "Private data on individuals" means data which is made by statute or federal law applicable to the data: (a) not public; and (b) accessible to the individual subject of that data. Source: 13.02, 2008 Minnesota Statutes via Minnesota Office of the Revisor of Statutes

Minnesota § 13.37 essentially states that unopened absentee ballots are private data and are therefore inaccessible to the general public. The subject of this request, rejected absentee ballots, are currently unopened and therefore qualify for protection under § 13.37. Brodkorb may think he is circumventing § 13.37 by explicitly asking the election judges to open his requested ballots, but data practice requests do not fall within the duties of elections judges with regard to opening absentee ballots. In fact the only mechanism by which absentee ballots can be opened by an election judge falls within the jurisdiction of § 203B.12:

203B.12 ELECTION JUDGES TO RECEIVE AND COUNT BALLOTS. Subd. 4. Placement in container; opening and counting of ballots. The ballot envelopes from return envelopes marked "Accepted" shall be placed by the election judges in a separate absentee ballot container. The container and each ballot envelope may be opened only after the last regular mail delivery by the United States postal service on election day. The ballots shall then be initialed by the election judges in the same manner as ballots delivered by them to voters in person and shall be deposited in the appropriate ballot box. [emphasis added] Source: 203B.12, 2008 Minnesota Statutes via Minnesota Office of the Revisor of Statutes

The rejected absentee ballots requested by Brodkorb are not marked with "Accepted" by definition because they were "Rejected" under § 203B.12 subd 2. As a result of their current "Rejected" status, the absentee ballots in question would never qualify for the "separate absentee ballot container" and could therefore never be opened by an election judge. At this point, the first half of Brodkorb's argument is clear; he wants election officials to open his requested rejected ballots. Brodkorb then justifies this request by stating, in the second bolded portion, that the ballots then become public data if they are opened by election officials. It doesn't make a whole lot of sense; he is attempting to justify one action with another. The rejected ballots are private data, so to make them public, an election judge needs to open them; but an election judge cannot open them because they are rejected. Brodkorb's entire argument is circular and without merit. After seventeen days, Brodkorb posted a follow-up to his data practice requests:

I have received responses to all of my requests for public data and every county and city has denied my request. I'm reviewing my options and I'll have updates on this subject in the next 24 hours on Minnesota Democrats Exposed. Source: Update: MDE Exclusive: Data Practices Request Filed Today Requesting Copies of Certain Rejected Absentee Ballots via Minnesota Democrats Exposed

Brodkorb's request appears to have been flatly denied by each jurisdiction. He does however have at least one other option. Brodkorb could bring forth an action to compel discovery of these rejected ballots in accordance with MN § 13.03 subd. 6. I don't know how this would work, or if rejected absentee ballots even qualify for discoverability. It will be interesting to see if Brodkorb continues to pursue these data practice requests when he becomes the new Deputy Chair of the Minnesota Republican Party this Wednesday.

Realtime Results From Iran and USA

6/24/2009 9:15:38 AM CT

On June 12th, 85 percent of eligible Iranian voters cast a presidential ballot; on June 13th, many of these same citizens took to the streets to protest the apparent reelection of Ahmadinejad. The final vote tally, as reported by Juan Cole, a prominent Middle East expert and History Professor at the University of Michigan, is below:

So here is what Interior Minister Sadeq Mahsouli said Saturday about the outcome of the Iranian presidential elections: "Of 39,165,191 votes counted (85 percent), Mahmoud Ahmadinejad won the election with 24,527,516 (62.63 percent)." He announced that Mir-Hossein Mousavi came in second with 13,216,411 votes (33.75 percent). Mohsen Rezaei got 678,240 votes (1.73 percent) Mehdi Karroubi with 333,635 votes (0.85 percent). He put the void ballots at 409,389 (1.04 percent). Source: Stealing the Iranian Election via JuanCole.com

Despite the veil of electoral authenticity, rather large anomalies have been identified. Juan Cole quickly provided circumstantial evidence while the academic folks took a little more time completing their peer-reviewed papers. A consensus has emerged, even the Iranian State TV has acknowledged discrepancies in the election. The purpose of this article is to invalidate the preliminary claims of election fraud in Iran. The first attempt came in the form of a graph popularized by The Atlantic columnist Andrew Sullivan. A composite of the original graphs is presented below; the multiple colors depict different perspectives on the same data set: Andrew Sullivan posted multiple versions of this graph to his blog on June 13th. From the various versions it became clear that the data source was consistent, but the application varied. Iran's Entekhab News and web based TehranBureau.com both used the election results provided by JameJamOnline.ir to create their graphs; which were later referenced by Sullivan. The percent of the vote reported at each given coordinate is calculated with respect to the final two-way vote total; the reporting percent is overlaid near its associated coordinate. It is also important to note that there are two data sets. One is blue and has six dots while the other is red and has seven dots; the other red dots are exactly hidden behind the six blue points. I will now provide four additional facts which have not be explicitly stated; these facts are either crucial to the creation or subsequent interpretation of the original graphs: 1. Ahmadinejad's vote total is represented by the X-axis and Mousavi's vote total by the Y-axis. 2. Entekhab News plotted [PNG] seven data points while TehranBureau's graph [PNG] excluded the first data point, while using the other six. 3. The regression technique is a linear least-squares approximation that is not forced through the origin. Ideally, the linear equations should pass through the origin; because at some point in time, before any votes have been counted, both candidates have zero votes. 4. The original source JameJamOnline.ir is written in Farsi, a language I cannot read; because of this, the coordinates for the data points were not explicitly available. TehranBureau provided [PNG] coordinates for the six data points they used, but the first point used by Entekhab News is still unavailable. It was however possible to use the least-squares equation depicted on their graph and the other six points to determine a very reliable estimate[*] for the first by reversing the regression. The coordinates used on the above graph are presented below:

    Report %   Ahmadinejad      Mousavi       Two Way
     12.98*      3,469,534     1,429,332      4,898,867
     26.45       7,027,919     2,955,131      9,983,050
     39.37      10,230,478     4,628,912     14,859,390
     54.55      14,011,664     6,575,844     20,587,508
     62.10      15,913,256     7,526,117     23,439,373
     66.50      16,974,382     8,124,690     25,099,072
     72.15      18,302,924     8,929,232     27,232,156

     Final      24,527,516    13,216,411     37,743,927

By applying the data within fact #4, it becomes clear that the graph only encompasses about 45% or 60% of the total vote for the six and seven point graphs respectively. The entire analysis takes place within this region; the respective linear correlations are only valid within these ranges. Sullivan initially referenced the Entekhab News version but it was not and still is not useful due to the language barrier; Sullivan would later reference the English analysis by TehranBureau.com. Judging from their about page, TehranBureau.com shares strong ties with the Columbia Journalism School and features a slew of qualified contributors. Muhammad Sahimi, a chemical engineer and TehranBureau contributor, provided the following analysis on the six point graph:

The vertical axis (y) shows Mr. Mousavi's votes, and the horizontal (x) the President's [Ahmadinejad]. R^2 shows the correlation coefficient: the closer it is to 1.0, the more perfect is the fit, and it is 0.9995, as close to 1.0 as possible for any type of data. Statistically and mathematically, it is impossible to maintain such perfect linear relations between the votes of any two candidates in any election - and at all stages of vote counting. This is particularly true about Iran, a large country with a variety of ethnic groups who usually vote for a candidate who is ethnically one of their own. Source: Faulty Election Data via TehranBureau.com

[The referenced article has since been removed from TehranBureau.com] Muhammad Sahimi's assertion is not well received and lacks any proper causation; especially given the 45% window of relevance. In fact his "impossible" claim appears to be baseless when compared to relevant data from the 2008 Presidential Election in the USA. I intend to reproduce the high R^2 value using real-time data I collected on November 4th, 2008. The reported vote totals from each state were queued for download about 400 times an hour from MSNBC.com; data was collected in a circular queue as fast as possible. This does not mean that I have a complete set of data; networking and storage issues created significant discontinuities within the data, especially as the night progressed. MSNBC was used as the source because it was the only website that presented the election results as pure HTML; CNN, CBS, et al. used an asynchronous reporting scheme that prohibited the automated retrieval of their reported election results. Using some of this data, primarily from the East Coast, I will prove that a linear trend with a very high R^2 is the expected outcome of such a graph. Let's first begin by analyzing Kentucky, one of the first states to begin reporting results. The state of Kentucky lies across the Eastern and Central time zones; about half the state's polls closed at 6 ET and the other half at 7 ET. The graph below illustrates the number of votes received by each presidential candidate with respect to the time at which they were recorded; I began collecting data from all states at around 6:40 CT. The graph below depicts each US candidate's vote total as a function of time and looks decisively non-linear, as many would expect: The graph above simply intends to illustrate the discontinuities and imperfections of our data set in a more logical format. The graph above is not supposed to resemble the Iran graph; the version intended for comparison, using Kentucky data, is presented below: From simple inspection, the Kentucky graph appears to be reasonably linear, clearly depicting a strong similarity to the Iran graph of internet lore. Although the R^2 is slightly lower than its TehranBureau counterpart, an R^2 value of .9995 still remains plausible. I would argue that Kentucky represents an acceptable microcosm of "ethnic groups," but other factors may be at play. Kentucky may be the norm or it may be the exception, the only way to find out is by analyzing more data. I conducted the same analysis using Virginia's data; first the votes vs. time graph from Virginia for a glimpse at our data set: The Virginia data is clearly smoother than its Kentucky equivalent, but the curves resemble the same general form. I looked at a number of other states and the same general shape held across geographic and demographic borders. We'll now explore the relation between each candidate's vote totals in Virginia: The Virginia graph seems to support the linear trend we saw in the Kentucky graph, but again the R^2 value is slightly lower than our target. This discrepancy can likely be attributed to the large number of points plotted, around 1,500, in the preceding graphs. If we were to strictly adhere to our four previously stated facts, specifically by using just six or seven points, we could probably achieve higher R^2 values. Let's go ahead and do that now. The observations I made earlier will now play an important role in definitively disproving the "impossibility." Let's first begin by establishing the various threshold reporting levels for Kentucky and Virginia with respect to the original:

                         KENTUCKY

  Report %    Time CT   McCain       Obama      Two Way
   16.76       18:40    173,406     126,564      299,970
   26.49       19:12    268,616     205,480      474,096
   36.00       19:32    371,124     273,229      644,353
   53.03       20:02    532,940     416,231      949,171
   62.09       20:17    621,411     489,848    1,111,259
   64.64       20:24    642,008     514,837    1,156,845
   80.57       20:27    818,572     623,366    1,441,938

   Final              1,043,264     746,510    1,789,774


                         VIRGINIA    
               
  Report %    Time CT   McCain       Obama      Two Way
   13.38       19:02     278,094     214,706     492,800
   26.53       19:32     547,199     430,212     977,411
   40.32       19:52     780,552     705,180   1,485,732
   56.49       20:17   1,049,451   1,031,789   2,081,240
   63.84       20:42   1,179,737   1,172,437   2,352,174
   67.88       20:52   1,251,123   1,250,040   2,501,163
   72.36       21:07   1,328,103   1,338,087   2,666,190
                    
   Final               1,726,053   1,958,370   3,684,423

Some rough extrapolations must be done to satisfy these thresholds; there are several ways to do this, but the two-way vote total was chosen as the measuring stick. When the distribution of the data resulted in two points equally spaced from the intended threshold, the larger percentage was used. This is not a perfect scenario, but it should still serve to facilitate an unbiased result. If you don't like my methodology you can download the data in CSV format at the end of this article and make your own rules. The composite six and seven point graphs for Kentucky, Virginia, Michigan and Pennsylvania are presented below with strict adherence to the original's methodology: The Kentucky data set is by far the most variable of the four states depicted and the threshold percentages also have the largest error relative to their corresponding target. Unfortunately, Kentucky is unable to provide definitive evidence, in terms of the R^2 value, to entirely vacate the "impossible" claim. Virginia is our next stop: The R^2 value associated with the six point regression, .9996, is higher than the R^2 value of .9995 associated with the TehranBureau graph. The seven point R^2 value is however lower than the Entekhab News value of .9986. This unarguably debunks Muhammad Sahimi's assertion of statistical and mathematical impossibility. Such an outcome is very possible, perhaps even probable. Virginia is also geographically representative of the urban/rural population demographics in Iran. Virginia has an urban population of 72.9% according to the 2000 Census while Iran's urban population is 68% according to their 2006 Census. Dissimilarities do however remain, including the margin of victory and the total number of votes cast; and while this may not be an ideal comparison, the aspect of impossibility has been erased. Onto Michigan: The Michigan graph overcomes our seven point target with an R^2 of .9991, but it fails to match the six point result put forth by TehranBureau. The urban population of Michigan, at 75.5%, is also fairly close to Iran's. We have yet another example proving the possibility of such a correlation. Pennsylvania continues the trend: Pennsylvania's R^2 values match the TehranBureau mark and fall just short of the .9986 value needed to equal the seven point correlation coefficient presented by Entekhab News. Pennsylvania is however more urban than Iran by about 10.0%; but given that this is now the third state with an R^2 in excess of, or equal to, the value claimed by an Iranian source, the presence of a linear correlation is irrelevant to the possibility of election fraud. Having dispelled the individual R^2 values for both the six and seven point data sets, I never ran into a state that met or exceeded both R^2 values. This lack of repeatability may be significant, but based upon the preceding work, its likely just a case of random coincidence and inconsistent data. The bottom line is this, a linear relationship between two candidates' vote totals is the expected correlation. The direct result of this research does not however prove or disprove election fraud, it simply invalidates the linear correlation metric as a means of identifying fraud. And finally, the real time data as promised: Kentucky: [CSV, 49KB]
Virginia: [CSV, 60KB]
Michigan: [CSV, 56KB]
Pennsylvania: [CSV, 62KB] If you do anything useful or interesting with this data, please let me know.

Disbursements for Franken

6/11/2009 11:09:16 PM CT

While the MN Supreme Court deliberates on Norm Coleman's latest appeal, the Election Contest Court addressed and resolved the issue of disbursements; the monetary reimbursement of court associated fees. The legal process began shortly after the ECC declared Franken the victor with the first disbursement filing arriving on April 28th from the Franken campaign; just 15 days after the court's final judgment. The Franken document totaled 394 pages with 384 pages of exhibits. The first ten pages contained the body of the filing while the remaining 384 pages, of exhibits, were found within a gray three ring binder. The digitization of the exhibit portion was just completed this morning by the Ramsey County Court Administration Office. Prior to purchasing the first ten pages, and then later receiving the exhibits from a Ramsey County Court Administrator, no portion of this document could be publicly accessed without making a physical trip to the Ramsey County Court House. The entire document has been converted to PDF for public consumption below with the highlights excerpted:

David L. Lillehaug, being duly sworn, on oath says that he is one of the attorneys for Contestee Al Franken ("Contestee") in the above entitled action and certifies that he has investigated the costs and disbursements claimed herein, and that the following is a true statement of the taxable costs and disbursements incurred by Contestee; and that each and every item thereof has actually and necessarily been paid or incurred in this action. Documents supporting each of Contestees' costs and disbursements are attached.
Statutory Costs                           $205.50 
   (Minn. Stat. § 549.02, subd. 1)	
Court Filing Fees                       $1,130.00 
   (Minn. Stat. § 357.021) (Tab A)	
Deposition Transcripts of Testifying    $7,315.30 
   Witnesses (Minn. Stat. § 357.31)	
   (Tab B)	
Written Deposition Transcripts            $812.50 
   Entered Into Evidence 	
   (Minn. Stat § 357.31) (Tab C)	
Deposition Transcripts Entered          $3,200.70 
   Into Evidence	
   (Minn. Stat. § 357.31) (Tab D)	
Trial Transcripts                      $35,382.55 
   (Abraham v, County of Hennepin, 	
   622 N.W.2d 121, 129)	
   (Minn. Ct. App. 2001) (Tab E)	
Trial Exhibits                         $26,576.38 
   (Minn. Stat. §§ 357.31	
   and 357.315) (Tab F)	
Data Practice Requests/Subpoenas       $59,078.89 
   (Minn. Slat. § 357.31) (Tab G)	
Trial Technology & Equipment            $6,031.23 
   (Minn. Stat. § 549.04) (Tab H)	
Photocopying & Service of Trial Motions $2,152.51 
   (Minn. Stat. § 549.04) (Tab I)	
Trial Subpoenas & Witness Fees (Tab J) $19,625.07

Total Costs and Disbursements         $161,510.63 
Dated: April 28, 2009 Source: Contestee's Bill of Costs and Disbursements via VoteForAmerica.net [PDF] [Exhibits: 394 Pages, 12.7 MB, PDF]

The list above contains the itemized cost for each subheading for which the Franken campaign is seeking reimbursements from the losing party; in this case, the Coleman campaign. It's also pertinent to note that the Franken campaign did not provide a rational for why any item should be reimbursed; they were simply presenting the ECC with a probable list of expenditures which they believe qualify for reimbursement. On another note, the projector used during the ECC trial was actually provided by the Franken campaign. The State of Minnesota does not provide a projector for use in their most prestigious court room; this is absolutely astonishing to me. I also found it humorous that the Franken campaign made a roughly $600 purchase of printing related goods from BestBuy (on page 329); BestBuy was the 14th largest corporate supporter to Norm Coleman according to OpenSecrets.org for the period from 2007-2008. The Coleman campaign then responded to Franken's list of applicable expenditures on May 8th by providing their rationale for why some of the listed items do not qualify for compensation. The introduction and conclusion of their opposition is excerpted below with the accompanying PDF as published on the MNCourts website on May 21st:

I. Introduction Contestants Cullen Sheehan and Norm Coleman (collectively, "Contestants"), by and through the undersigned counsel, hereby object to Contestee Al Franken's ("Contestee") Bill of Costs and Disbursements, notice of which Contestee served May 6, 2009. Contestee has not provided sufficient detail and/or documentation from which to determine the basis of many of the costs he identifies and the purpose for which they were incurred. Nor has he provided a sufficient explanation as to whether the costs claimed were necessary or reasonable, and it is his burden to do so. Accordingly, this Court should disallow the taxation of costs and disbursements to the Contestants to the extent Contestee has inadequately described his costs or it deems them unnecessary or unreasonable. ... III. CONCLUSION For the foregoing reasons, Contestants respectfully request that this Court disallow Contestee's costs and disbursements to the extent he has improperly classified them as "costs," inadequately described them, or failed to justify them as necessary and reasonable. Dated: May 8, 2009 Source: Contestants Objections to Contestees Bill of Costs and Disbursements via MNCourts.gov [PDF]

Unsurprisingly, the Coleman campaign essentially argued that the Franken campaign did not adequately provide needed detail. The brunt of their argument can be summarized with the following quote from the third page, "[t]he burden is on the prevailing party [Franken] to show that its claimed costs are necessary and reasonable." The Coleman campaign also took issue with the expedited status of the many transcripts and witness filing fees that the Franken campaign incurred. From a details point of view, the Coleman filing did not contain any attached exhibits or material evidence supporting any of their claims. The Franken campaign responded on May 13th in 9 pages by addressing each of their claims and Coleman's associated refutations. The Coleman campaign did not refute each item as the Franken campaign noted $5,392 worth of requested disbursements lacking objections. The introduction and conclusion of Franken's response is excerpted below as posted on the MNCourts site on May 21st:

Contestee Al Franken ("Contestee") respectfully submits that his costs should be awarded and in the full amount requested pursuant to Minn. R. Civ. P. 54.04. Contestee has submitted a sworn affidavit and numerous invoices documenting costs and disbursements necessarily incurred, as required. Contestants have submitted no affidavit in response. Nor have they suggested that the total amount requested is unreasonable for a complex, seven-week, exhibit-intensive trial. Instead, they raise a series of ill-founded objections, all of which should be rejected. Contestee's costs were reasonably incurred, necessary to the defense of Contestants' lawsuit, and are fully recoverable under Rule 54. ... For all of these reasons, Contestee submits that the full amount itemized in the Bill of Costs and Disbursements should be taxed to Contestants. The costs were reasonably incurred, necessary for the presentation of relevant and admissible evidence at trial, and should be awarded to Contestee as the prevailing party in this action pursuant to Rule 54.04. Dated: May 13, 2009 Source: Contestees Response to Contestants Objections to Bill of Costs and Disbursements via MNCourts.gov [PDF]

The ECC issued their ruling today by awarding the Franken campaign roughly two-thirds of their requested disbursements. The publicly available filing from the ECC is fairly terse and without details; the entire document is quoted below:

You are hereby notified that a judgment has been entered in the above entitled matter Pursuant to The Findings of Fact, Conclusions of Law, and Order for Judgment, Judge Elizabeth A. Hayden, Judge Kurt J. Marben and Judge Denise D. Reilly dated April 13, 2009. Judgment Information Entered Date: April 14, 2009
Debtor(s): Cullen Sheehan; Norm Coleman.
Creditor(s): At Franken Monetary Award:
Monetary Amount: $94,783.15 A true and correct copy of this notice has been served by mail upon the parties. Please be advised that notices sent to attorneys are sent to the lead attorney only. ***Pursuant to MSA 548.09, Judgment shall be docketed upon the filing of an Affidavit of Identification of Judgment Debtor*** Note: Costs and interest will accrue on any money judgment amounts from the date of entry until the judgment is satisfied in full. Dated: June 10, 2009 Source: Notice of Entry of Judgment Taxation of Costs via MNCourts.gov [PDF]

The ECC order appears to retroactively take effect on April 14th and requires the Coleman campaign to pay $94,783.15 in reimbursements to the Franken campaign. I am unsure as to when the "date of entry" officially begins; the interest rate on any delinquent payments is also not explicitly given. The ECC may have also provided additional documentation that has not yet been made available. A decision from the MN Supreme Court is still pending, but according to John Kostouros the Director of Communications for the Judicial Branch, their opinion "will be released during normal business hours (8 a.m. to 5 p.m., Monday-Friday)." Until this unknown date occurs, political posturing will continue as several outside groups have filed additional lawsuits relating to the MN Senate Election. While the outcome rests solely in the hands of the MN Supreme Court, the battle for public opinion never ends. I'll try to detail these auxiliary lawsuits later next week, after completing the necessary research.

MNSC Oral Arguments

6/1/2009 4:13:16 PM CT

The Minnesota Supreme Court convened today at 9 AM CT for the oral arguments associated with Norm Coleman's election appeal. The proceedings lasted approximately 69 minutes; upon their conclusion, each candidate's representation addressed the media on the second floor of the Minnesota Judicial Building. The unabridged oral arguments follow as publicly provided by the Minnesota Judicial Branch and Twin Cities Public Television; low bandwidth audio from within the chamber is also available: Video: .WMV, 01:08:47, 78.1 MB [Mirror: TPT.org]
Audio: All files are .WAV, Part 1, Part 2, Part 3 Coleman's lead attorney, Joseph Friedberg began the hearing with what was supposed to be a ten minute introduction. Ten minutes turned into thirty as the five judge panel peppered Coleman's representation with questions and critiques. Despite the barrage of questions, the most telling exchanged occurred in the opening moments of the hearing:

Justice Page: We have one case for argument this morning, in the matter of the contest of general election held on November 4, 2008 for the purpose of electing a United States Senator from the State of Minnesota. Mr. Friedberg I see you have reserved 10 minutes for rebuttal. Joseph Friedberg [Coleman]: With the court's permission your honor. Justice Page: You may proceed when you are ready. Mr. Friedberg: Morning and may it please this court; my name is Joe Friedberg, I represent [Norm Coleman]. Let me begin by saying that Minnesota is quite different from many states. We have problems within our institutions and when we do, we deal with them candidly and openly, we don't minimize them or sweep 'em under the rug to be discovered later by a federal court during 1983 litigation. That's why finding of fact 47 of the trial court is so surprising. Announcing that we are proud of rejecting only 0.5% of our total ballots cast in November is misleading at best. The only ballots that get rejected are absentee ballots; and our officials rejected 4% of them; 12,000 citizens who made good faith efforts to vote were disenfranchised for a variety--. Justice Page: Did these 12,000 citizens comply with the absentee ballot voter requirements. Mr. Friedberg: Many of them did substantially your honor, many of them did. Justice Page: Substantially? What does that mean? Source: Minnesota Judicial Branch [Mirror: TPT.org]

The remainder of Mr. Friedberg's opening address revolved around Justice Page's seemingly rhetorical, yet legally unanswered question quoted above. The arguments meandered from justice to justice as Friedberg attempted to answer each question. Justice Anderson, Dietzen, Gildea and Meyer each took issue with the Coleman campaign's lack of evidentiary support with regard to their inconsistent application of the strict vs. substantial compliance argument. Justice Meyer prominently entered the fray with this exchange toward the end of Mr. Friedberg's initial rebuttal:

Justice Meyer: Where is evidence from the overwhelming majority of the counties and cities? Mr. Friedberg: Every auditor we called, as I recall, made exceptions [to the admittance of absentee ballots]. Now I think we only called 26 or 27--. Justice Meyer: And we have 87 counties, we are reviewing the work of a panel of three trial court judges here and they took evidence. Where is the evidence? Even as you called, as you said, you didn't even call witnesses from a majority of Minnesota's counties. You are asking us to presume, based on the testimony from a sampling of counties that that practice is applied to a majority of the counties. Source: Minnesota Judicial Branch [Mirror: TPT.org]

Friedberg responded by hesitantly referencing the assumed equality of populations within Bush vs. Gore to compare the "relaxed standard in Brower County with the unrelaxed standard in Palm Beach." Friedberg would then go on to state that "we have made our case" when "Plymouth kicks out 75 for signature mismatches and 31 counties in the state kick out none." I think Friedberg has a valid point from a mathematical standpoint if true; the Plymouth scenario presents a significant outlier and the aforementioned sampling of "26 or 27" counties represent a statistically sound sampling of all 87 counties. An inconsistent application of absentee ballot compliance in "26 or 27" counties would indicate to me, although devoid of legal rigor, that a problem existed, regardless of the remaining 50 or so counties. Whether the Coleman campaign adequately provided evidence to support this claim is vague at best. Mr. Friedberg's time expired and Marc Elias, Franken's lead attorney, stepped up to the podium whereupon stating his name received his first question from Justice Page:

Justice Page: Council, before you get to that finding of fact, let me ask you a question. Hopefully council for the other side will be able to respond to this on the rebuttal. To the extent that the United States Senate will make the ultimate decision here, and the extent that they don't have to follow what we do. How do we issue an opinion, without it being an advisory opinion? In essence, do we have authority to do anything here? Marc Elias [Franken]: Your Honor, this question was raised with the district court as to whether the court had jurisdiction. The court found, and we believe appropriately so, that the court had jurisdiction to determine who received the most lawful votes, even though the Senate has within its jurisdiction to decide who is seated. Source: Minnesota Judicial Branch [Mirror: TPT.org]

Elias would then go onto quote a South Dakota case involving Tom Daschle from his days as a Congressman. The referenced case was eventually linked to a Supreme Court decision stating that so long as the state process does not impede the US Senate, the state court is not "deprived of jurisdiction." The MNSC clearly has the power to declare a winner under Minnesota Statute, but the US Senate is under no obligation to act in accordance with any decision. The issuance of an election certificate for the sole purpose of full representation is irrelevant to the Supreme Court's present responsibility; an election certificate will apparently only be issued upon the thorough completion of the appeals process. The sole duty of the MN Supreme Court is to determine the candidate who received the largest number of legally cast votes, not to ensure federal representation or for any other purpose. Elias would then go on to perform a small bit of math in the hopes of illustrating the futility of the Appellants' case:

Mr. Elias: From the March 31st order of the trial court, in which [the Coleman campaign] held that of all the rejected absentee ballots, the parties proved registration for approximately 650; 650 of all of the ballots presented to the court. That's voter registration, that's not all of the other requirements that appellants now have complaints about. But this is the most fundamental requirement, that the voter be registered. Of those 650, 351 were opened and counted. So the universe of ballots, properly plead and about which this trial took place, stands at 299. Now, obviously the margin separating the two candidates is 312. As a result, even if everyone of the three-hundred or so ballots, for which voter registration was proven, doesn't mean the witness was registered, doesn't mean that the certificate was completed, it doesn't mean that they only cast one ballot, but that they were at least registered. Even if all three-hundred of those were for the appellant, and even if all three-hundred met all other requirements, it would still be impossible for the appellants to make up the difference. Source: Minnesota Judicial Branch [Mirror: TPT.org]

The remainder of Elias' time was spent discussing the finer points of due process and equal protection. Elias contended that the discrepancies between each county served to "grease the joints" of election reporting. He later defended any breach of due process or equal protection on the grounds that the inconsistencies were not intentional or systematic and could therefore not be classified as in bad faith or fraudulent as required within Bush vs. Gore. Elias concluded his presentation by stating that election officials used "the different tools, available to them in the different jurisdictions" to "administer a fair election" within the confines of the law. Mr. Friedberg then returned to the podium for the final fifteen minute stint and made three main assertions before the court adjourned. He first presented the varying processes by which each county voided an invalid ballot, thus potentially creating cases where the voter was registered, but their vote was not counted due to a failure to comply with another statutory requirement. Friedberg then reasoned that these registered voters should have their vote counted based upon the application of substantial compliance. Justice Page then questioned the lack of evidence presented by the Coleman campaign specifically relating to these uniquely registered and rejected voters. Friedberg countered by stating that the ECC would not accept the evidence despite his effort, to the point of "test[ing] the trial court's patience." Justice Anderson then explicitly asked Friedberg if their were any instances of fraud. Friedberg responded by simply stating "absolutely not" and added that there was no fraud of any kind; election, voter or otherwise. During Elias' statement, Justice Deitzen began to muddle through the messy statute associated with the challenging of ballots; Deitzen would later finished his line of questioning with Friedberg at the helm. Although the statute is not definitive, the application, as implement by the Attorney General during the recount, precluded either campaign from challenging the inclusion of any absentee ballot. This meant that once an absentee ballot was included by an election official for any reason, it would be opened and counted. This practice differed from the in-person portion of the recount in which the campaigns were allowed to challenge the election officials' ruling. Upon conclusion of the hearing, Norm Coleman and Joseph Friedberg jointly addressed the media: Video: .WMV, 09:37, 158MB The general gist of Coleman's address was that there are voters who have not had their vote counted, and are therefore disenfranchised; until they are enfranchised the campaign will continue to represent the interests of these 4,400 voters. This statement seems to align with Friedberg's opening remarks. Mr. Friedberg cited Minnesota's Judicial history of addressing all problems before they reach the federal level. Drawing from this prior statement it seems logical to conclude that if the MNSC does not address all of the problems, the Coleman campaign will seek federal relief. Marc Elias then addressed the media after the Coleman procession exited the foyer: Video: .WMV, 04:19, 71.1MB Marc Elias' brief address was followed up by a few soft questions from the media. Elias basically reiterated that he was confident of a Franken victory, but that he had no specific timeline in mind for a Supreme Court decision. If I had to guess at a timeline I would say by July 4th, but I really have no idea; the whole ordeal could drag out even further depending on what the MNSC concludes. Coleman's best case scenario is for the ECC to resume the trial with different rules and Franken's best case scenario is an outright win. Its also possible for this to end up in federal court as discussed above. I doubt very much will happen within the next two weeks. I also stopped by the Ramsey County Court House to obtain some other court documents that I'll hopefully be able to post sooner rather than later.

Appellant, Respondent & Reply Briefs

5/27/2009 10:59:18 PM CT

The Coleman campaign filled their brief with the Minnesota Supreme Court on April 30th, the last possible day for submission. An overview of the 62 page document is excerpted below:

ISSUES PRESENTED ON APPEAL 1) Whether the trial court erred in excluding evidence regarding (a) the disparate application by election officials of the statutory standard governing absentee ballots and (b) the presence of illegal votes in the certified vote totals?
Trial Court's Ruling: Such evidence was irrelevant to whether the ballots before it were legally cast.
Apposite Authorities: Minn. Stat. § 209.12; U.S. Const. amend. XIV. 2) Whether the trial court violated the constitutional protections of equal protection and due process when it declared Respondent received the highest number of "legally cast votes" where the record demonstrated the number of "illegally cast" ballots, under the court's own definition, that were counted on election day and during the recount greatly exceeded the margin between the candidates?
Trial Court's Ruling: Already-counted absentee ballots, even if illegal under the court's own definition, were properly included in the tally because Minnesota law does not provide any remedy for retracting such ballots from vote totals and the Fourteenth Amendment does not require that similar ballots in the same election be treated the same.
Apposite Authorities: Minn. Stat. § 209.12; Hanson v. Emanuel, 297 N.W. 749 (Minn. 1941); Berg v. Veit, 162 N.W. 522 (Minn. 1917); Roe v. State of Alabama, 43 F.3d 574, 581 (lith Cir. 1995); Griffin v. Burns, 570 F.2d 1065, 1078 (lst Cir. 1978); U.S. Const. amend. XIV. 3) Whether the trial court violated the constitutional protections of equal protection and due process when it imposed a strict compliance standard for rejected absentee ballots rather than a substantial compliance standard like that actually applied by election officials (and in accord with this Court's longstanding policy favoring enfranchisement)?
Trial Court's Ruling: Rejected absentee ballots that do not strictly comply with the statutory requirements may not be included as "legally cast" ballots regardless of whether election officials also followed a strict compliance standard.
Apposite Authorities: Fitzgerald v. Morlock, 120 N.W.2d 339, 345-47 (Minn. 1963); Andersen v. Rolvaag, 119 N.W.2d 1,10 (Minn. 1962); In re Contest of School District Election, 431 N.W.2d 911,915 (Minn. Ct. App. 1988); Minn. Stat. § 203B.12; Erlandson v. Kiffmeyer, 659 N.W.2d 724, 729 (Minn. 2003); Bush v. Gore, 531 U.S. 98 (2000); U.S. Const. amend XIV. 4) Whether the trial court erred in declining to order inspections of precincts in which double-counting may have occurred during the recount?
Trial Court's Ruling: Inspections were not required and unnecessary.
Apposite Authorities: Minn. Stat. § 209.06. 5) Whether the trial court erred in ruling missing ballots from a Minneapolis precinct were properly included in the final recount tally?
Trial Court's Ruling: The court gave deference to the canvassing board's determination that election night totals from that precinct be included in the tally.
Apposite Authorities: Newton v. Newell, 6 N.W. 346 (Minn. 1880). Dated: April 30, 2009 Source: Appellant's Brief [PDF]

Coleman's initial brief "contains 13,751 words" across five sections and focuses on the five points outlined above; the document was also written in "13-point Times New Roman format," as detailed within the Certificate of Compliance at the end of the brief. I'll now provide a brief analysis of each of the five main points: 1. The basis of this argument is that if different ballots were subjective to different standards, all ballots were treated differently. Coleman argues that had the court allowed additional evidence, a more accurate definition of a legally cast vote would have been ascertained. The Coleman campaign did not however provide any specific evidence, in this brief, to illustrate that the correlation between inconsistent standards caused any discrepancy in the final vote count. The ECC excluded this evidence because the Coleman campaign did not show that specific ballots were miscounted. 2. The "Coleman [campaign] ultimately compiled that evidence in written offers of...more than 425 illegally cast absentee ballots counted on election day. See, e.g., A.570-591; A.709-919." This number of 425 is larger than the current margin of 312, but election history and apportionment would indicate that a much larger number of illegally cast and counted votes would be required to alter the outcome; especially given the apparent randomness of the illegally counted ballots proposed by Coleman. 3. Each and every ballot that was counted by an election official, using any standard, could have been presented to the ECC for review by the Coleman campaign. The very purpose of the ECC is to act as the final arbiter for any contention raised by any participating party; their jurisdiction implies the existence of a uniform standard. If a ballot is presented to the ECC it receives uniform treatment under the strict compliance standard; if a given ballot is not alleged to contain errors, it is assumed to have been properly counted by the local election official under the strict compliance standard as dictated under MN Law. If a uniform standard was not applied by the local election officials, it was the responsibility of the Coleman campaign to flag the error for correction by the ECC; a mechanism which satisfies equal protection. 4. The Coleman campaign never presented any compelling evidence to suggest that double counting occurred. They presented a fairly limited number of precincts exhibiting overcounts (more votes than voters) and attempted to imply that double counting only occurred to the detriment of candidate Coleman; they did not however provide any concrete reasoning to support this claim either through evidence or witness testimony. Their double counting argument might have been more effective had they addressed all [PDF] overcounted precincts. Lets also not forget that the MNSC previously issued a non-binding order, before the ECC, addressing the flimsiness of the double counting evidence presented by the Coleman campaign. 5. The MN State Canvassing Board determined that the Election Night totals from Minneapolis W3-P1 should be used due to missing ballots and the ECC later adopted the Canvassing Board's stance. Without very compelling new evidence, which so far hasn't been presented, the MNSC is not going to overturn the opinion of these two election governing bodies. The Franken campaign's response on May 11th mirrored the organization of the Coleman's effort and also came on the last day of the designated timeline. The Franken response contains a direct rebuttal of the five previous points, as excerpted below:

RESTATEMENT OF ISSUES PRESENTED 1) Whether the trial court acted within its discretion when it excluded cumulative and irrelevant evidence that would not have affected the outcome of the trial.
Trial Court's Ruling: On multiple grounds, the evidence was properly excluded.
Authorities: State v. AmoJ, 6.58 N.W.2d 201,203 (Minn. 2003); Minn. R. Civ. P. 61. 2) Whether the trial court acted within its discretion when it prohibited Appellants from presenting evidence that had never been disclosed in discovery, where the effect was to preclude a claim that was procedurally barred, factually unsupported, and without legal merit.
Trial Court's Ruling: Appellants not only failed to meet their burden of proving that certain accepted absentee ballots affected the outcome of the election; they also waived these claims by failing to comply with discovery obligations.
Authorities: Minn. Twim P'sbip v. Hatch, .592 N.W.2d 847, 850 (Minn. 1999); Hahn v. Graham, 225 N.W.2d 385,386 (Minn. 1975). 3) Whether the trial court was correct to judge the acceptability of absentee ballots under Minnesota statutes and case law, rather than under an invented standard that finds no support in the statutes, the Constitution, or the facts, where the party advocating the alternative, invented standard inadequately raised the claim and presented insufficient proof in support.
Ruling: Appellants' claims fail on multiple grounds, and, in any event, Minnesota law governs the treatment of absentee ballots.
Authorities: Cranford v. Marion County Election Bd., 128 S. Ct. 1610 (2008); Bell v. Gannaway, 227 N.W.2d 797 (Minn. 1975); Minn. Stat. §§ 203B.02 et seq. 4) Whether the trial court acted within its discretion when it determined that Appellants had failed to show a need for certain pretrial inspections.
Trial Court's Ruling: On multiple grounds, Appellants failed to meet their burden.
Authorities: Minn. Stat. § 209.06. 5) Whether the trial court properly refused to overturn the certification by the State Canvassing Board, where the latter had determined, after a hearing and on advice of the Attorney General, that the Election Day returns were the best evidence of the votes in a certain Minneapolis precinct.
Ruling: The Board acted correctly and Appellants presented insufficient evidence to overturn its certification.
Authorities: Moon v. Harris, 142 N.W. 12 (Minn. 1913). Dated: May 11, 2009 Source: Respondent's Brief [PDF]

The Franken campaign basically took Coleman's argument and added a "no" or a "not" to the beginning and provided the typical supporting legal references. This is by no means unexpected, but it highlights the futility of Coleman's appeal. The Coleman campaign's best case scenario has shifted away from that of winning to that of not-losing; an invalidation seems to be their best case scenario. The Franken campaign is simply attempting to eliminate that possibility. On an interesting side note, the Franken response "contain[ed] 13,998 words" about 200 more than Coleman's first brief, but the Franken campaign chose to use the "Garamond font," instead of Times New Roman as the Coleman campaign used. The Coleman campaign responded with their reply brief on May 15th, again the last day of the deadline:

CONCLUSION In order to satisfy Minn. Stat. § 209.12 and the constitutional guarantees of equal protection and due process, the Court should vacate the order for judgment and reverse and remand with instructions to count the remaining absentee ballots cast by eligible voters who substantially complied with the directives of Minn. Stat. § 203B.12. Dated: May 15, 2009 Source: Appellant's Reply Brief [PDF]

Parsing through all the legal pretense reveals the core of Coleman's strategy; to count sum "4,400" absentee ballots that have yet to be counted. Whether Coleman can legally justify the counting is a different matter; he seems to be using the one wrong needs another wrong to make a right approach. Illegal ballots were probably counted, and the only way to counteract the problem is by counting more illegally counted ballots. My pragmatic solution is take the 4,400 absentee ballots and separate them into piles of lawlessness; then you count the most legal pile, then the next most legal and so on and so forth until it matters, or perhaps it won't. The counting process would have to be done blindly so that only the MNSC would know the result of each pile. If the entire batch of 4,400 is iterated through, degree by degree, and Franken still leads, the legality is moot; grant Coleman's central request and then declare Franken the winner. If the counting of these 4,400 alters the outcome, then the lawyers can fight about whatever their side needs to fight about, but at least we know the legal battle has a purpose. Coleman is currently down by 312 votes, and I highly doubt he could overcome this deficit within the 4,400 currently rejected and likely illegally cast ballots his campaign seeks to enfranchise. The Coleman campaign's requested remedy may not even matter at this point, but its their best shot and both campaigns know it.

MN Court Adopts Timeline

4/28/2009 3:27:14 AM CT

Last Friday the MN Supreme Court released their schedule for the MN Senate appeals process; the entire order is excerpted below:

ORDER On Monday, April 20, 2009, appellants Cullen Sheehan and Norm Coleman filed a notice of appeal from the judgment entered by the three-judge panellin Ramsey County District Court in the above-referenced election contest On Tuesday, April 21, 2009, respondent AI Franken filed and served a motion for expedited briefing and proposed a particular briefing schedule; appellants filed a written response and proposed briefing schedule on Wednesday, April 22. The time for appeal by other parties expired on Thursday, April 23, 2009, and no other appeals have been filed. In accordance with Minn. Stat §§ 209.09, subd. 2, 209.10, subd. 4, and 209.12 (2008), the appeal shall proceed on an expedited basis. Based upon all the files, records and proceedings herein, IT IS HEREBY ORDERED THAT: 1. Ramsey County District Court shall certify and file the record on appeal with the Clerk of Appellate Courts as expeditiously as possible, but in no event later than 15 days after the service of the notice of appeal on April 20, 2009. 2. Appellants shall serve and file their brief not later than Thursday, April 30, 2009; respondent shall serve and file his brief not later than Monday, May 11, 2009. Appellants may serve and file a reply brief not later than Friday, May 15, 2009. Briefs and appendices shall comply with the requirements of Minn. R. Civ. App, P. 128.02-.04, 130, 131.03, and 132.01. Briefs must be received by the Clerk of Appellate Courts by the deadlines noted to be timely filed. 3. Service by mail is permissible if a complete copy of the material is also transmitted to opposing counsel bye-mail or facsimile by the deadlines imposed herein. Each party shall notify the Clerk of Appellate Courts and opposing counsel of an e-mail address or facsimile number to which documents may be transmitted. 4. The court will hear argument on this matter commencing at 9:00 a.m., Monday, June 1,2009, in Courtroom 300, Minnesota Judicial Center, 25 Rev. Dr. Martin Luther King, Jr., Boulevard, Saint Paul. Argument will proceed in accordance with the applicable provisions of Minn. R. Civ. App. P. 134. 5. Respondent's motion for expedited briefing is otherwise denied. Dated: April 24, 2009 Source: Order of Scheduling via MNCourts.gov

The MNSC essentially adopted the Coleman campaign's requested timeline for briefing submissions while delaying the oral arguments for roughly two weeks beyond the final submission deadline. The first document is due this Thursday from the Coleman campaign with the Franken response due two weeks hence on the 11th of May. At that point the Coleman campaign will have 4 days to submit a final reply brief before the proceedings adjourn until June 1st; the day allocated for oral arguments.

Coleman Presents Timeline

4/23/2009 2:46:42 AM CT

Yesterday the Franken Campaign presented their pre-litigation timeline, and today the Coleman campaign responded:

Appellants agree this is a time-sensitive case that should be resolved as expeditiously as possible, Appellants respectfully submit, however, that the parties, and the Court, must be given enough time to fully develop and consider the issues on appeal. Accordingly, Appellants respectfully request a slight modification to the briefing schedule proposed by Respondent as follows:
1. Opening brief of Appellants - April 30, 2009;
2. Opposition brief of Respondent - May 11, 2009; and
3. Reply brief - May 15, 2009. The Court may then schedule oral argument at a time convenient to it. Dated: April 22, 2009 Source: Appellants' Response to Respondent's Motion for Expedited Schedule via MNCourts.gov [PDF]

The schedule above concludes on May 15th, a Friday, which seems to suggest that oral arguments would begin the following Monday, May 18th. The Coleman timeline is about two weeks longer than Franken's timeline; this discrepancy manifests itself at each stage of the pre-litigation process. It appears as though the Coleman campaign wants 3 more days to file their initial brief, above and beyond the schedule already outlined by the Franken campaign. It's also interesting to note that the Coleman schedule allows about ten days for the Franken response, while the Franken campaign only indicated that they would need five days. The Coleman campaign also increased their reply time by two days beyond Franken's proposition. It would make sense for the court to grant Coleman the additional time he is requesting for his own case, but to follow the schedule presented by Franken for deadlines that apply to Franken. It doesn't make sense to allocate ten days when they (Franken) said they could do it in five. I think the court will ultimately compromise between the two campaign's requests; thus resulting in an oral argument start date of May 11th. The Franken campaign also filed a motion with the MN Supreme Court today, although theirs was comparatively meaningless:

David L Lillehaug does hereby move the Court, pursuant to Minn. R Civ. App, P 127 and 143.05, subd. 1, for admission of Marc E. Elias and Kevin J. Hamilton as attorneys pro hac vice to appear before this honorable Court on behalf of Respondent Al Franken in the above-captioned matter, This motion is based upon all files, records and proceedings herein, as well as the attached Affidavits of Marc E. Elias and Kevin J. Hamilton. This motion is submitted on the papers, and oral argument is expressly waived. Dated: April 22, 2009 Source: Respondents's Motion to Admit Attorney's Pro Hac Vice via MNCourts.gov [PDF]

Marc Elias and Kevin Hamilton both actively participated in the Election Contest Court; this is simply a procedural motion that will grant these two attorneys the privilege of practicing law before the Minnesota Supreme Court. Marc Elias is registered with the DC Bar, while Kevin Hamilton is registered with the Washington State Bar. The MN Supreme Court will probably present the official appeal timeline/schedule within the next few days at which point the litigation process begins, again, although slightly different in nature and much shorter. Update [3:47 AM CT 4/24/2009]: The Supreme Court has granted Franken's request for the admission of two lawyers pro hac vice. This order really isn't a suprise, but I guess it brings the resolution just a little closer:

ORDER Based upon all the files, records and proceedings herein, IT IS HEREBY ORDERED that the motion of David L Lillehaug to admit Marc E. Elias and Kevin J. Hamilton, Perkins Coie, LLP, pro hac vice in the above entitled matter be, and the same is, granted. Dated: April 23, 2009 Source: Order Granting Motion to Admit Attorneys Pro Hac Vice via MNCourts.gov [PDF]

The bulk of the proceedings will occur out of court, through the exchange of filings, and will culminate with oral arguments presented by each campaign in public court. In previous MN Supreme Court cases relating to this election, the oral arguments have been scheduled for a single hour; the court may however allocate more time as they deem necessary. This is not a typical trial format, once the oral arguments conclude, the court will deliberate until a decision is reached. The schedule will effectively dictate the duration of the trial, unfortunately the court has not released their final timeline; but I'm sure its in the works.

Franken in a Hurry

4/22/2009 1:54:43 AM CT

The Coleman campaign filed their motion for appeal yesterday, and today the Franken campaign responded with the following requests:

Cullen Sheehan and Norm Coleman ("Appellants") have appealed the unanimous decision of the three-judge election contest court ("the District Court"), which, after a seven week trial, affirmed the unanimous Minnesota State Canvassing Board certification that Al Franken ("Respondent") received the highest number of votes in the 2008 general election for the office of United States Senator. Because of the overriding public interest in the expeditious handling and resolution of this historic matter, Respondent respectfully moves for an order that:
1. The record of the District Court proceedings be provided to the Court by the close of business tomorrow, Wednesday, April 22, 2008;
2. Briefing be expedited pursuant to the schedule below, so that the case will be ready for argument twelve calendar days following provision of the record, or Monday, May 4, 2008; and
3. A date for oral argument be set such that the case will be argued promptly after briefing is complete. This motion is made pursuant to Minn. Stat § 209.09, subds. 2 & 4, Minn. R. Civ App. P. 102 and 126, and the Court's inherent authority. GROUNDS FOR MOTION Under the United States Constitution, Minnesota is entitled to be represented by two United States Senators, Minnesota has been without its second Senator for more than 100 days, In a trial that lasted seven weeks, Appellants were given every opportunity to make their case to the District Court In its unanimous decision, the District Court declared that Respondent is entitled to the certificate of election. Now, because of the important public policy concern of ensuring that the interests of the citizens of Minnesota are properly represented in Congress, this appeal should be expedited. ... 1. Expedite the Preparation and Filing of the Record. ... 2. Expedite the Briefing Schedule. ... Accordingly, Respondent suggests the following briefing timeline:
A. Opening brief of Appellants - Monday, April 27, 2009, five calendar days after delivery of the record;
B, Opposition brief of Respondent - Saturday, May 2, 2009, five calendar days after service of the opening brief; and
C. Reply brief - Monday, May 4, 2009, two calendar days after service of the opposition brief. 3. Set an Expedited Date for Oral Argument. Respondent respectfully suggests that the Court schedule oral argument now for a date very shortly after the reply brief is submitted. More than five full months have elapsed since the November 4, 2008, general election. More than three months have elapsed since the State Canvassing Board declared the election result and the United States Senate convened to address the nation's urgent business. Yet, unlike every other state in the union, Minnesota stands alone with only a single United States Senator to represent its citizens and respond to their concerns. While Appellants had the right to challenge the State Canvassing Board's decision before three judges and now have the right to appeal the District Court's unanimous decision rejecting their claims, Respondent submits that the overriding public interest in resolving this dispute promptly requires that this appeal be expedited. Dated: April 21, 2009 Source: Respondent's Motion to Expedited Schedule via MNCourts.gov [PDF]

The Franken campaign is seeking to accelerate the litigation proceedings to the greatest extent possible; they cite several Minnesota Statues, which I detailed yesterday, that give precedent to this election contest appeal. It should also be noted that the MN Supreme Court arranges their own schedule in accordance with Rule 102 of the Minnesota Rules of Civil Appellate Procedure. I am however sure, that the MN Supreme Court will address this appeal in the most efficient manner possible. The Franken campaign is pushing for a May 4th start date, and their request seems reasonable given the circumstances. If I had to bet, I would say that May 4th would be the absolute soonest the oral arguments could start, with May 11th, the following Monday, presenting as another realistic start date.

Coleman Files Appeal

4/20/2009 6:10:01 PM CT

The representation of Norm Coleman has filed paper work with the Minnesota Supreme Court appealing the decision of the Election Contest Court. The filings came in the form of three documents, each of which I will highlight below. The first document is the Notice of Appeal:

TO: Clerk of the Appellate Courts
Minnesota Judicial Center
25 Rev. Dr. Martin Luther King Jr Blvd.
St. Paul, MN 55155 PLEASE TAKE NOTICE that the above-named Contestants appeal to the Supreme Court of the State of Minnesota, pursuant to Minn. Stat. § 209.10 subd. 4, from the final judgment of the contest court entered on the date shown above, declaring Contestee the recipient of the highest number of legally cast votes in the General Election held November 4, 2008, for the purpose of electing a United States Senator for the State of Minnesota, as well as from all orders relating thereto as subsumed therein. Dated: April 20, 2009 ... Dear Clerk of Appellate Courts: Enclosed for filing in the above-referenced matter are the following documents: 1. Original and 2 copies of the Notice of Appeal to Supreme Court; 2. Certified copy of the Contest Court's Judgment; 3 Original and 2 copies of the Appellants' Statement of the Case; 4. Affidavit of Service upon Ramsey County; and 5. Affidavit of Service upon opposing counsel. Also enclosed is our check in the amount of $500 to cover the filing fee. Source: Notice of Appeal to Supreme Court via MNCourts.gov [PDF]

The second document contains 10 items that more or less summarize the appeal. Some of these items are simply procedural while others contain useful information. Section 5 is by far the most relevant as it directly lists the claims that the Coleman campaign is actually appealing; I've excerpted all of section 5 and the headings of the other 9 sections below:

1. COURT OF CASE ORIGINATION AND NAME OF PRESIDING JUDGE 2. JURISDICTIONAL STATEMENT 3. TYPE OF LITIGATION AND STATUTE AT ISSUE 4. DESCRIPTION OF CLAIMS, DEFENSES, ISSUES LITIGATED AND RESULT BELOW 5. ISSUES PRESENTED ON APPEAL
I. Whether the trial court erred in excluding evidence regarding (a) the disparate application by election officials of the statutory standard governing absentee ballots and (b) the presence of illegal votes in the certified totals from election night?
II. Whether the trial court violated the constitutional protections of equal protection and due process when it declared that Respondent received the highest number of "legally cast votes" where the record demonstrated that, by the trial court's rulings, the number of "illegally cast" ballots counted on election day and during the recount greatly exceeded the margin between the candidates and it cannot be determined for which candidate those illegal votes were counted?
III. Whether the trial court violated the constitutional protections of equal protection and due process when it imposed a strict compliance standard for the rejected absentee ballots rather than applying a substantial compliance standard to reflect those actually applied by election officials (as well as this Court's longstanding policy favoring enfranchisement)?
IV. Whether the trial court erred in declining to order inspections of precincts in which double-counting was alleged to have occurred?
V. Whether the trial court erred in ruling that missing ballots from Minneapolis Precinct 3-1 were properly included in the tally officially cast votes? 6. RELATED APPEALS 7. CONTENTS OF RECORD 8. ORAL ARGUMENT 9. TYPE OF BRIEF 10. NAMES, ADDRESSES, ZIP CODES AND TELEPHONE NUMBERS OF ATTORNEYS FOR APPELLANT AND RESPONDENT Dated: April 20, 2009 Source: Statement of the Case of Appellants via MNCourts.gov [PDF]

The most interesting point of appeal comes from section 5.2 and seems to highlight Norm Coleman's attempt to invalidate the election, rather than prevail as the top vote-getter. This marks the first time, that I can recall, where the Coleman campaign has sought relief that would not result in him being declared the winner. The other four items in this section do however encompass the potential addition or subtraction of votes, that could result in Coleman taking the lead, albeit it unlikely. The final document is simply the judgment entered by the ECC last Monday that asserted Franken's victory by 312 votes. I assume, that when filing an appeal, you must file the judgment which you are actually appealing. Any future court filings will be filed on the MN Supreme Court litigation page; a change from the previous ECC litigation website. I have no idea when the actual litigation process will begin, although, according to MN § 209.10.4, "the appeal from an election contest relating to the office of state senator or representative takes precedence over all other matters before the Supreme Court." MN § 209.10.4 further pertains "to a contest regarding a statewide office" as noted within MN § 209.09; this classification includes the US Senate Election. Although the appeal will have precedence, I would still expect the Franken campaign to push for an expedited schedule. Update [7:38 PM CT]: I found other relevant law (§ 209.09) that applied to § 209.10.4 and thus establishes the election contest appeal as paramount to MN Supreme Court's duties. I've updated the article to clarify and reflect these changes.

All Quiet on the MNSC Appeal Front

4/19/2009 4:31:53 PM CT

A relatively quiet week ensued, after the Election Contest Court's Monday ruling, but a few pertinent if seemingly unrelated events did transpire. I'll cover two events, as reported by the two major Minnesota papers, and present the time frame for Norm Coleman's potential appeal to the MN Supreme Court. Our first event features a meeting between Norm Coleman and the Minneapolis Star Tribune's Editorial Board. The meeting took place on April 16th, and a small portion of the video has been posted online at the Star Tribune website. The excerpt shows Norm Coleman visibly upset over the Star Tribune's conduct, with regard to the allegations of money laundering, in the days directly preceding the election. I covered the allegations back in November, if you're curious about the back story. It'll be interesting to see if the Star Tribune alters their reporting procedures in the coming weeks to make amends; even though they already tend to lean right. Our next story involves another act of vandalism levied against Norm Coleman's house; as reported by the Pioneer Press:

St. Paul police are investigating after eggs were thrown at former U.S. Sen. Norm Coleman's house in the Crocus Hill neighborhood. It happened about 9:20 p.m. Tuesday, according to a police report that recorded the incident as misdemeanor criminal damage to property. After eggs had hit the front door of Coleman's home in the 600 block of Osceola Avenue, a resident of the home saw a man who appeared to be in his 20s outside, said Peter Panos, police spokesman. The report didn't say who the resident was or whether Coleman was home, Panos said today. The resident then saw the man throw a few more eggs, Panos said. The number of eggs thrown wasn't in the report, he said. The egg thrower wasn't caught, Panos said. Coleman said Wednesday that a young man had bicycled past his home this week and thrown eggs at him. ... Republican Coleman has said he will appeal this week's court ruling that Democrat Al Franken won last year's U.S. Senate race. Source: St. Paul Pioneer Press

I don't know if this is particularly important, but it happened, so I'm reporting it. The last line of the excerpt does however provide a perfect segue. Norm Coleman, lost his election contest, and now he has the opportunity to appeal the ECC's ruling; which he has indicated he will do. Let's began by looking at the relevant law proscribing the time frame in which an appeal must occur:

Subd. 4.Appeal. The judge's decision may be appealed to the Supreme Court no later than ten days after its entry in the case of a general election contest or five days after its entry in the case of a primary contest. The record on appeal must be made, certified, and filed in the Supreme Court within 15 days after service of notice of appeal. The appellant shall file in the district court a bond of $500 for the payment of respondent's costs if appellant fails on appeal. The appeal from an election contest relating to the office of state senator or representative takes precedence over all other matters before the Supreme Court. A copy of the decision must be forwarded to the chief clerk of the house of representatives or the secretary of the senate, as appropriate. Source: § 209.10, 2008 Minnesota Statutes

We know that Coleman has "ten days" to appeal, but the above article makes no reference to calendar days, business days or whatever; so the question then becomes, when does the tenth day occur? Another Minnesota Statute seems to outline the proper interpretation:

6.01 Computation In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a legal holiday, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the court administrator inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is less than seven days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation. As used in this rule and in Rule 77(c), "legal holiday" includes any holiday defined or designated by statute. Source: Minnesota Rules of Civil Procedure

The ten day appeal period began on Tuesday, April 14th because the day of the ruling, Monday, "shall not be included." It's not clear whether the judgment was actually legally entered on Monday, as MN Rule 58.01 dictates that order "shall be entered forthwith by the court administrator", which may or may not be the date of filing. There may exist other legal contingencies that could extend the start date for the appeal window. If we assume that the judgment took effect on Monday April 13th, that makes the tenth day Thursday, April 23th as weekends and legal holidays are included because the prescribed time is more than seven days. Therefore, the Notice of Appeal must be filled on or before Thursday, April, 23; unless weather or other extenuating circumstances arise which facilitate the closure of the court offices. In this event, the Notice of Appeal must be filed on the next day the court office is open and this "next day" cannot be a weekend or a legal holiday. If the judgment was entered on Tuesday, Wednesday becomes the first day, and the final deadline then becomes Friday, April 24th; barring closure due to weather, etc. I doubt, the Coleman campaign is in a hurry to file their appeal, my guess is at least Wednesday. In the mean time, Franken will still not be seated in the US Senate without an Election Certificate which, according to MN § 204C.40, cannot be issued until after "a court of proper jurisdiction has finally determined the contest." In the case of an appeal, this would be the MN Supreme Court. If by next Thursday (or Friday), an appeal is not filed by the Coleman campaign, a Minnesota Election Certificate could be legally issued to Al Franken. Update [9:31 PM CT]: I clarified some of the appeal deadlines and accounted for other contingencies that could alter the window for appeal.

Franken Wins, Rules ECC

4/13/2009 7:01:09 PM CT

The 2008 Minnesota Senate Election officially has a winner, at least according to the Election Contest Tribunal. The three judge ECC issued a 68 page order late Monday declaring Franken the winner. The body of the order is excerpted below:

ORDER FOR JUDGMENT Based on the above findings of fact and conclusions of law, and pursuant to Minn. Stat. § 209.12, the Court DECIDES, DECLARES, AND ADJUDGES that Contestee Al Franken is the party to the contest who received the highest number of votes legally cast in the 2008 United States Senate general election and is therefore entitled to receive the certificate of election. Accordingly, IT IS ORDERED that: 1. Contestants' Notice of Contest is dismissed with prejudice; 2. Contestee's Counterclaims are dismissed without prejudice as moot; 3. Pursuant to Minn. Stat. § 209.07, subd. 3, costs of the contest must be paid by Contestants, and Contestee and the Court shall prove up the applicable costs by affidavit after all proceedings in this matter are concluded; and 4. For the reasons stated in the Court's Order of March 2, 2009, imposing a sanction on Contestants, Contestee is awarded his reasonable costs and attorneys' fees in connection with Contestants' failure to disclose, such costs and fees to be proved up by affidavit. 5. Any request for relief in these proceedings not specifically granted herein is denied. There being no just reason for delay, LET JUDGMENT BE ENTERED ACCORDINGLY Dated: April 13 2009 Source: Findings of Fact, Conclusions of Law, and Order for Judgment via MNCourts.gov [PDF]

Before the above order, the ECC presented 157 individual findings of fact over 24 pages. Finding #120 addresses the missing ballots in Minneapolis W3-P1 and findings #137 and #138 detail the voters whose ballots were opened and counted on April 7th:

120. Given the evidence presented, the Court finds that 132 ballots from Minneapolis Precinct 3-1 were cast and properly counted on Election Day and were lost at some point after they were counted on Election Day but before the administrative recount. ... 137. The evidence was sufficient to prove that the absentee ballots of the persons identified in Attachment A were legally cast and wrongfully rejected. 138. The following additions shall be made to the vote totals certified by the Board on January 5, 2009: 111 additional votes for Coleman and 198 additional votes for Franken. Source: Findings of Fact, Conclusions of Law, and Order for Judgment via MNCourts.gov [PDF]

Attachment A contains the names and counties of 351 voters, along with a reference to the exhibit or court document in which they were originally presented. A greater majority of the exhibit reference appear to begin with an "F," meaning that the Franken campaign originally presented that voter's absentee ballot. This is not however a scientific analysis, simply a brief observation. I'll digitize the document later and provide an exact count at a later date. Follwing the findings of fact, the court then presented two memorandums addressing specific, yet unresolved issues. The first memorandum is entitled "RULE 9/DOUBLE COUNTING MEMORANDUM" and can be characterized from the following excerpts on page 30 and 31 of the order, respectively:

Any argument that Contestants did not realize that Rule 9 might lead to possible "double counting" of ballots has been waived by their conduct and delay in raising this issue. This court emphasized in earlier orders that this is an expedited proceeding. Contestants' unreasonably delayed raising their claim and are now barred from asserting it. ... This Court received evidence that it is not uncommon for discrepancies to exist between the number of ballots cast in a precinct and the number of voters shown on Election Day rosters. These Election Day discrepancies can be caused by voters failing to sign rosters before voting and election judges failing to mark the acceptance of absentee ballots on the rosters. The Court cannot conclude that double counting occurred simply because the number of votes counted during the recount is greater than the number of voters on the rosters. Source: Findings of Fact, Conclusions of Law, and Order for Judgment via MNCourts.gov [PDF]

Basically the court acknowledged that discrepancies between the number of physical voters and the number of physical votes existed, but the court was unmoved by the Contestant's [Coleman] attempts to prove that these discrepancies were caused by double counting. The next memorandum is entitled "EQUAL PROTECTION MEMORANDUM," and as you might guess, deals with Coleman's equal protection claim. The court first summarized Coleman's argument on page 33 and then states, on page 37, that the proper jurisdiction for this argument lies within the US Senate:

I. Introduction Contestants argue that similarly-situated absentee ballots were treated differently throughout Minnesota's counties and cities, and that this inconsistent treatment implicates the Equal Protection Clauses of the United States and Minnesota Constitutions. The Court reviewed this argument respectfully in light of the mandates of the United States Constitution and the Minnesota Constitution that all persons similarly-situated be treated alike under the law. See U.S. CONST. amend. XIV, § 1; MINN. CONST. Art. 1, § 2. ... Thus, to the extent Contestants' equal protection argument alleges "deliberate, serious, and material violation[s]" of Minnesota's election laws, this Court lacks jurisdiction to make findings or conclusions on these points and the matter is preserved for the United States Senate. See Minn. Stat. § 209.12 ("Evidence ... including ... the question of the right of any person to nomination or office on the ground of deliberate, serious, and material violation of the provisions of the Minnesota Election Law, must be taken and preserved by the judge trying the contest. .. ."); U.S. CONST. Art. 1, § 5, Cl. 1 ("Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members."); see also Odegard v. Olson, 119 N.W.2d 717, 719 (Minn. 1963). The Minnesota Supreme Court recently addressed this issue directly and ruled as follows:
When the election contest concerns a congressional office, the only question to be decided is which candidate received the highest number of votes legally cast at the election. Minn. Stat. § 209.12 (2008). Nevertheless, evidence on any other issues specified in the notice of election contest is to be preserved and forwarded to the presiding officer of the Senate or House of Representatives of the United States, as the case may be. Id. Coleman v. Ritchie, 762 N.W.2d 218, 226 (Minn. 2009). Source: Findings of Fact, Conclusions of Law, and Order for Judgment via MNCourts.gov [PDF]

The equal protection memorandum continues until page 56 and addresses many of Coleman's additional claim's by essentially stating that the 2008 Minnesota Senate Election administration was conducted in accordance with the US Constitution and the Minnesota Constitution. The ECC concluded their order by stating the following:

The citizens of Minnesota should be proud of their election system. Minnesota has one of the highest voter-participation rates in the country. The Office of the Minnesota Secretary of State and election officials throughout Minnesota's counties and cities are well-trained, fair, and conscientious and performed their duties admirably. Minnesota could not conduct elections without the hard work and diligence of its dedicated professionals and citizen volunteers, and the Court is proud of their service. Source: Findings of Fact, Conclusions of Law, and Order for Judgment via MNCourts.gov[PDF]

All that remains is for Gov. Tim Pawlenty (R) and SOS Mark Ritchie (D) to sign the Election Certificate as directed, although not legally obligated, by the above order. Coleman has 10 days to file an appeal to the MN Supreme Court, but the ECC states that the US Senate has the ultimate jurisdiction. Al Franken officially received more votes than any other candidate, but his path to the US Senate may still be lined with political obstacles. The Coleman campaign has already acknowledged their intent to appeal, and there are rumors that Tim Pawlenty may not sign the certificate until the appeals process has ended. In any case, Al Franken received the most votes for US Senate in the State of Minnesota on November 4th, 2008. Update [3:08 AM CT]: I went ahead and parsed through Attachment A [CSV] and the results were mildly surprising:

Record          # Ballots
Coleman:          110
Franken:          193 (194)
Nauen:             36  (37)
Contestee's SJ:    10
Testimony:          1

Total:            351

The parentheses denote a voter who was listed within both a Franken Exhibit and a Nauen Summary Judgment order. More than half of the 351 absentee ballots contained within Attachment A originated from evidence presented by the Franken Campaign. It's interesting to note that the number of ballots accepted from each campaign almost identically replicates the final result of the 351 ballots; the final allocation was Coleman 111, Franken 198 and 42 to Other. The most interesting inclusion does however come from a Coleman presented witness. If you recall from the litigation proceedings, Robert Peter DeMuth filled out his voter registration form with the aid of a computer by digitally signing his absentee ballot request form. Mr. DeMuth's ballot was included in the ECC certified result as the ECC only required that the voter sign the physical envelope; which Mr. DeMuth apparently did.

The Counting Aftermath

4/10/2009 6:31:48 PM CT

On Tuesday, April 7th, the MN Senate Election Contest Court sat down at 9:30 AM CT with 387 absentee ballots and began the tedious process of opening, sorting and counting their contents. The counting process did not began for some time, but when it did, the court had identified 351 ballots which merited inclusion into the vote tally. The ECC court released the following order detailing the specific voters contained within the 351 identified ballots:

This matter comes before the Court after its review of certain original absentee ballot materials pursuant to this Court's Order for Delivery of Ballots to Office of the Minnesota Secretary of State for Review by the Court. After review, IT IS HEREBY ORDERED: 1. The absentee ballots in the attached Exhibit A shall be opened and counted in accordance with Paragraph 4 of the Court's Order for Delivery of Ballots to Office of the Minnesota Secretary of State for Review by the Court. 2. Any other relief not fully set forth herein is expressly denied. Dated: April 7, 2009 [Exhibit A: List of 351 Voter's Names and County, CSV] Source: Order for Opening and Counting of Ballots via MNCourts.gov

Parsing through the list revealed that 41 of the 42 Nauen Petitioner's identified within the ECC's request were also listed within the ECC's order for opening and counting. Each of the 41 voter's is assumed to have voted for Franken because the Franken campaign was funding their intervention. This leaves 310 voters with unknown allegiances; 10 of the 12 voter's identified within Contestee's [Franken] Partial Summary Judgment are also listed within this 310 vote subset. I updated my extrapolation to account for the 41 Nauen Petitioner's and the remaining 310 voters; I assume that the Nauen voters will break for Franken in a 90-5-5 fashion and that the 10 Partial Summary Judgement voters have no inclination to vote for one candidate or another: Extrapolations: ECC Accepts 351 Additional Absentee Ballots [PDF, 141KB]

                      Identified       Extrapolation
                        Voters      Coleman      Franken
ECC Ordered Opened        310        130.66       129.33
    Coleman Regions       190         91.85        66.61
    Franken Regions       120         38.82        62.72

Nauen Petitioners          41          2.05        36.90
    Newly Orded             6           .30         5.40
    Previously Ordered     35          1.75        31.50

Extrapolation Total       351        132.71       166.23

Actual Result             351          111          198

The Pioneer Press and the Star Tribune have both reported that the final resolution of these 351 ballots resulted in Franken increasing his lead by 87 votes from 225, to 312. At this point it seems unlikely that further ballots will be opened and counted, but the possibility does remain. The ECC also has yet to address the 133 (or 134) lost ballots in Minneapolis W3-P1 and any remedy to the Coleman campaign's argument of double counted ballots. It seems unlikely that a ruling will be released today, as the ECC just released an order clarifying the resolution of the Nauen Petitioners:

This action came on for a court trial before the Honorable Elizabeth A. Hayden, the Honorable Kurt J. Marben, and the Honorable Denise D. Reilly, District Court Judges, beginning on January 26, 2009 and ending on March 13, 2009. Having considered the testimony and evidence adduced at trial, the exhibits admitted into evidence, the pleadings,' briefs and memoranda submitted by all the parties, and the arguments of counsel, the Court now makes the following: ORDER 1. Petitioners filed a Petition pursuant to Minnesota Statute section 204B.44 with the Minnesota Supreme Court on January 13, 2009. On January 16, 2009, the Minnesota Supreme Court issued an order granting Norm Coleman's motion to intervene in Petitioners' proceeding and further directing the Petition to this Court for consideration and decision within the current election contest. 2. Pursuant to the Court's Order Granting in Part and Denying in Part Petitioners' Motion for Summary Judgment (Feb. 10, 2009), Nunc Pro Tunc Order Correcting Order Granting in Part and Denying in Part Petitioners' Motion for Summary Judgment (Feb. 10, 2009). Order on Intervenor's Rule 60.02 Motion 10 Vacate Judgment (Mar. 2, 2009), Order Granting in Part and Denying in Part Petitioners' Renewed Motion for Summary Judgment (Mar. 11, 2009), and Order Granting Petitioners' Second Renewed Motion for Summary Judgment and Amending Order Granting in Part and Denying in Part Petitioners' Renewed Motion for Summary Judgment Dated March 11, 2009 (Mar. 31, 2009), the Court granted summary judgment with respect to the following Petitioners: 3. On March 31, 2009, the Court Issued an Order for Delivery of Ballots to.Office of the Minnesota Secretary of State for Review by the Court. The Petitioners listed above were identified in the Court's March 31, 2009 Order. [List of 36 Voter's Names and County, CSV] 4. On-April 7, 2009, the Court ordered the absentee ballot return envelopes of voters identified in an attached exhibit to be opened and counted by the Office of the Secretary of State in open court and the totals included in the results of the 2008 United States Senate election reported by the Minnesota Secretary of State. With one exception, the ballots of the individuals listed above were opened, sorted and counted by the Office of the Secretary of State in open court on April 7, 2009, pursuant to the Court's March 31, 2009 and April 7, 2009 Orders.¹ 5. With respect to the Petitioners not expressly identified herein, the Court has not been presented with sufficient individualized evidence in support of Petitioners' claims. The Petition with respect to those individuals is accordingly DISMISSED. 6. Any request for relief in these proceedings not specifically granted herein is denied. There being no just reason for delay. LET JUDGMENT BE ENTERED ACCORDINGLY. Dated: April 10, 2009 ¹The absentee ballot return envelope of Roxanna Saad of Dakota County was not opened and counted on April 7, 2009, after the Court determined Ms. Saad failed to fully complete a voter registration application. Source: Order Regarding Resolution of Petitioner's Motion via MNCourts.gov

The above order details the 36 petitioner's listed within previous orders granting the opening and counting of their ballots, a number I arrived at on Monday. The final count, as noted above, included 35 of the 36 plus 6 other petitioners who had not previously been granted relief. This brings the grand total of relieved Nauen Petitioners to 41. I've updated my Nauen voter table to reflect the result of the counting procedure; the contents of this most recent order did not reveal any new information. It simply outlined the result of the Nauen Petitioner's and dismissed the remaining petitioner's request for relief: Extrapolation: Nauen Petitioners and ECC Ordered Opened & Counted Aftermath [PDF, 125KB] Despite the ECC's detailed and straightforward resolution of the Nauen Petioners, Rachel E. Stassen-Berger of the St. Paul Pioneer Press still managed to a provide inaccurate information:

The order the court did issue today dismissed the case of the voters who sued on their own but haven't had their ballots counted. Sixty-one voters sued early this year to have their absentee ballot votes counted. That suit, which was funded by Franken, was folded into Coleman's larger suit. Thirty-six of those voters had their ballots opened and counted on Tuesday, along with 315 other absentee ballots. The results on those ballots boosted Franken's lead to 312 votes. Today, the judges said that the case of the other 25 votes was dismissed. [emphasis added to depict inaccuracies] Source: St. Paul Pioneer Press

Rachel's entire article contained just 217 words, but three glaring inaccuracies: 1. There were 64 Nauen petitioners, not "sixty-one;" although three voters did eventually withdraw their claim.
Exhibit A: List of 64 Voters by Name and County, [CSV, 2KB]
Source: Petition by Certain MN Voters to Have Their Votes Counted via MNCourts.gov 2. Forty-one of the Nauen petitioners eventually had their vote counted; the "thirty-six" Rachel presents originates from today's order and tells me that she cannot read footnotes. Thirty-six voters were originally presented, but Roxanna Saad's ballot was never counted because it did not contain a completed voter registration form. 3. The "25" other votes should actually read 23, but its hard to get this number right, when the two previous numbers were completely wrong; 64-41=23. The ECC will probably present their ruling some time next week, at that point, the loser will have 10 days to present an appeal to the MN Supreme Court.

The Counting Begins

4/7/2009 4:14:51 AM CT

Before the court even begins counting tomorrow morning, thirteen ballots will be eliminated from their original request of 400. The Star Tribune is reporting, by way of the Deputy Secretary of State, that 13 of the 400 ballots have already been counted and were erroneously requested due to clerical errors. The relevant portion of the Star Tribune article is excerpted below:

Deputy Secretary of State Jim Gelbmann said Monday that 13 of the 400 ballots on the judges' list had already been counted, on Election Day or during the recount, putting the number of ballots that might be added at 387. Once opened, outside envelopes -- which contain voters' names -- will be separated from the security envelopes that contain the original ballots, said Secretary of State Mark Ritchie. Poser will then sort the ballots into three piles -- Franken, Coleman and other. Source: Minneapolis Star Tribune

This reduction of the potential pool of additional, countable absentee ballots will likely facilitate an MN Supreme Court appeal by Norm Coleman as the number of physical ballots quickly approaches his current deficit. Once the ballots are counted, hopefully by the end of tomorrow, the court still has other issues to confront before they present their ruling. Once the ECC determines the victor, the loser will have 10 days to appeal to the MN Supreme Court. In other related news, the Franken campaigns has asked the court to allow another attorney, Lisa Marshall Manheim from Seattle, WA to practice before the court:

Contestee Al Franken hereby moves for permission for Lisa Marshall Manheim, attorney with Perkins Coie LLP, to practice before this Court pro hac vice in this matter. This Motion is based upon Rule 5 of the General Rules of Practice for the District Courts, the accompanying affidavit of Lisa Marshal Manheim, and the files and proceedings herein. Dated: April 6, 2009 Source: Contestees Motion for Admission Pro Hac Vice of Lisa Marshall Manheim via MNCourts.gov

I really have no idea why the Franken campaign is seeking further representation but a quick Google search revealed a little background information about Mrs. Manheim. She apparently represented the Democratic candidate, Chris Gregoire, during the 2004 Washington Gubernatorial Recount; Gregoire eventually won. Perhaps the Franken campaign is already gearing up for the appeals process; although a separate request would have to be filled with the MN Supreme Court, the relevant court during a subsequent appeal. Other than those two bits of information, I have nothing else to report until the counting begins tomorrow at 9:30 AM CT. Check theuptake.org for a live stream tomorrow morning. Hopefully the court releases some hard numbers tomorrow, but if they don't I'm sure a few shoddy numbers will trickle in from the Minnesota Media; in any case I'll try to recap the count tomorrow night, assuming relevant data exists.

Clarifying the 400 Requested Ballots

4/6/2009 9:18:22 AM CT

I wrote an article last Thursday in which I attempted to quantify the Election Contest Court's Tuesday request for 400 currently rejected absentee ballots. While my previous analysis was not technically incorrect, it was however a misrepresentation of the current state of affairs; I entirely neglected to account for the Nauen group of petitioners. I'll first present the corrected extrapolation: Extrapolations: ECC Requests by City [Nauen] [PDF, 128KB]

                      Identified       Extrapolation
                        Voters      Coleman      Franken
ECC Request               358        150.24       149.86
    Coleman Regions       219        106.02        76.30
    Franken Regions       139         44.24        73.56

Nauen Petitioners          42          2.10        37.80
    Only Orig. 64           6           .30         5.40
    Ordered Counted        36          1.80        32.40

Total                     400        152.35       187.66

You'll notice that the new version greatly increases Franken's projected gain; up to about 35 from around 1.5 previously. This vast increase can be directly attributed to the assumption that any voter listed within the Nauen group is inherently more likely to vote for Franken as the Franken campaign is providing the financial support; Mr. Nauen also appears to be a Democrat based upon his contributions. The extrapolation uses a 90-5-5 split, in favor of Franken. Coleman needs to make up 225 votes, and the numbers simply do not add up; either in the extrapolation above or the trinomial distribution below: The very small number above, is the probability of Norm Coleman overcoming the Canvassing Board Certified 225 vote deficit within the 400 ballots requested by the ECC; the calculation uses the statewide result as certified by the MN State Canvassing Board on January 5th. The numbers of the current situation are hopefully well understood but let's take a look at the sequence of events relating to the Nauen Petitioners to better understand the current circumstances. The pertinent excerpts of the original Nauen petition, as presented on January 13th, is quoted below; this filling listed each of the 64 voters by name and county within Exhibit A:

CLAIM FOR RELIEF WHEREFORE, Petitioners respectfully pray for an Order of the Court as follows: 1. Directing that Petitioners' absentee ballots shall be opened and counted, and the total be declared and certified, for such use as might be deemed appropriate by the United States Senate or the judges responsible for the election contest pending in the District Court for the County of Ramsey, No. 62-CV-09-56 or any other proper use under law, pursuant to procedures established by this Court. 2. Granting Petitioner's such other relief as the Court deems just and appropriate. Dated: January 13, 2008 ... Exhibit A [List of 64 Voters by Name and County, CSV] Source: Petition by Certain MN Voters to have their Votes Counted Pursuant to Mn.Stat.204B.44 via MNCourts.gov

Within the first filling, the 64 petitioners basically asked to have their votes counted. The ECC would eventually grant 23 of these individuals their request; a 24th also met the court's criteria barring the presence of a completed voter registration application. The February 10th order pertaining to these 23 (or 24) is presented below along with the digitized table containing their names and associated county:

This matter comes before the Court on Petitioners Dennis Peterson, et. al.'s (''Petitioners'') motion for summary judgment. After consideration of the arguments of counsel, the written submission of the parties, and the pleadings in the case. IT IS HEREBY ORDERED: 1. Petitioners' Motion for Summary Judgment is granted in part and denied in part. 2. The following absentee ballots shall be provided to the Secretary of State at a date to be determined by the Court to be opened and counted at a date to be determined by the Court, and the total be declared and certified for such use as might be appropriate by the United States Senate, this Court, or any other proper use under law. [List of 24 Voters by Name and County, CSV] 3. The absentee ballot of Roxanna Saad of Dakota County shall be provided to the Secretary of State at a date to be determined by the Court to open the secrecy envelope to determine whether it contains a complete voter registration application. In the event that a complete voter registration application is found within the secrecy envelope, Ms. Saad's absentee ballot shall be opened and counted in accordance with section 2 of this Order. 4. The attached Memorandum is incorporated as if fully set forth herein 5. Any requested relief not specifically granted herein is DENIED. Dated: February 10 2009 Source: Order Granting in Part and Denying in Part Petitioners Motion for Summary Judgment via MNCourts.gov

I wrote a previous article addressing the above order that may provide additional insight. The Coleman campaign then moved to vacate the previous order by specifically addressing eight of the just mentioned voters. The ECC met Coleman about half way and vacated three of the previously granted 24 petitioners. This order was released on March 2nd, but was never posted to the Litigation Website, but The Ohio State University pulled through:

This matter comes before the Court on "Contestants' Notice of Motion and Rule 60.02 Motion to Vacate Judgment." After consideration of the arguments of counsel, the written submission of the parties, and the pleadings in the case, IT IS HEREBY ORDERED: 1. Intervenor's Rule 60.02 Motion to Vacate Judgment is granted in part and denied in part. 2. That Portion of the Court's February 10th Order granting summary judgment to Petitioners Hannah Gorski, Donna Mortenson and Audrey Verlo is vacated. 3. The attached Memorandum is incorporated as if fully set forth herein 4. Any other relief not fully set forth herein is expressly denied. Dated: 3/2/09 Source: Order on Intervenor's Rule 60.02 Motion to Vacate Judgment via MoritzLaw.OSU.edu

The remaining forty or so voters still had the opportunity to provide additional evidence to support their original motion; nineteen voters then renewed their previous motion on February 20th. The court would release the following order with respect to this renewed:

The above-entitled matter came on for hearing before the Court on February 27, 2009, upon Petitioners' Renewed Motion for Summary Judgment. Counsel noted their appearances on the record. The Court having heard and read the arguments of counsel, and based upon the files, records, and proceedings herein, makes the following: ORDER 1. Petitioners' Renewed Motion for Summary Judgment is GRANTED IN PART AND DENIED IN PART. 2. The following absentee ballots shall he provided to the Secretary of State at a date to be determined by the Court to be opened and counted at a date to be determined by the Court, and the total be declared and certified for such use as might be appropriate by the United States Senate, this Court, or any other proper use under law. [List of 14 Voters by Name and County, CSV] 3. Any other relief not specifically ordered herein is DENIED. 4. The attached Memorandum is incorporated herein by reference. Dated this 11th day of March 2009. Source: Order Granting in Part and Denying in Part Petitioners Renewed Motion for Summary Judgment via MNCourts.gov

Fourteen of the nineteen petitioners were granted their requested relief as their ballots were ordered to be opened and counted, eventually. Three of the neglected five voters then tried again by further requesting that the ECC count their vote. This motion was filled on March 31st and is excerpted below:

This matter comes before the Court on Petitioners' Second Renewed Motion for Summary Judgment. After consideration of the arguments of counsel, the written submission of the parties, and the pleadings in the case, IT IS HEREBY ORDERED: 1. Petitioners' Second Renewed Motion for Summary Judgment is granted in full. 2. That portion of the Court's March 11th Order granting summary judgment to Petitioners Donald and Donelda Applebee is vacated. 3. The attached Memorandum is incorporated as if fully set forth herein 4. Any other relief not fully set forth herein is expressly denied. Dated: March 31, 2009 ... II. Petitioners' Renewed Motion for Summary Judgment is Granted In their second renewed motion for summary judgment, Petitioners seek summary judgment on claims brought by four voters: Katie Kaszysnki, Roxanna Saad, Kourteney Dropps, and Tempest Moore. In addition to the evidence presented by Petitioners in support of their motion for summary judgment, the Court in the election contest received evidence as to each of these voters. As in prior orders, the Court looks at the individualized evidence in support of Petitioners' claims that their ballots were properly cast and rejected in error in the November 4, 2008 election. The Court examines each of the identified Petitioners in tum. Source: Order Granting Petitioners Second Renewed Motion for Summary Judgment via MNCourts.gov

The three petitioners who were the subject of the second renewed motion were granted their relief, but two other, already relieved voters were not so fortunate. These two voters will not have their ballot examined for potential inclusion; there was apparently a clerical error that lead to their inclusion in one of the previous orders. This brings the total number of relieved Nauen petitioners to 35 (or 36). I've provided a recap of the Nauen orders below that accompanies a much more detailed spreadsheet: Extrapolations: Nauen Petitioners and ECC Ordered Opened & Counted [PDF, 125KB]

Date         Type     Party          Result      Total Votes
Jan 21      Motion    Nauen      64 Petitioners       0
Feb 10       Order    Nauen       Count 23 (24)     23 (24)
Mar  2       Order   Coleman        Vacate 3        20 (21)
Mar 11       Order    Nauen         Count 14        34 (35)
Mar 31       Order    Nauen        Count 3 (4)      37 (38)
                                    Vacate 2        35 (36)

While the Nauen group accounts for the vast majority of previously relieved voters, their was one other group, brought forth by the Contestee, Al Franken. The following order by the ECC takes us back to February 23rd addresses twelve voters listed within Franken's original counterclaim:

The above-entitled matter came on for hearing before the Court on January 23, 2009, upon Contestee's Conditional Motion for Partial Summary Judgment on Certain of Contestants' Claims and on Contestee's Conditional Motion for Partial Summary Judgment on Certain of Contestee's Counterclaims. Counsel noted their appearances on the record. The Court having heard and read the arguments of counsel, and based upon the files, records, and proceedings herein, makes the following: ORDER 1. Contestee's Conditional Motion for Partial Summary Judgment on Certain of Contestee's Counterclaims is GRANTED IN" PART AND DENIED IN PART. 2. The following absentee ballots shall be provided to the Secretary of State at a date to be determined by the Court to be opened and counted at a date to be determined by the Court, and the total be declared and certified for such use as might be appropriate by the United States Senate, this Court, or any other proper use under law. [List of 12 Voters by Name and County, CSV] 3. Contestee's Conditional Motion for Partial Summary Judgment on Certain of Contestants' Claims is DENIED. 4. Any other relief not specifically ordered herein is DENIED. 5. The attached Memorandum is incorporated herein by reference. Dated: February 23, 2009 Source: Order Granting in Part and Denying in Part Contestees Conditional Motions for Partial Summary Judgment via MNCourts.gov

These twelve voters votes will eventually be counted bringing the total number of previously relieved voters 47 (or 48):

Date         Type     Party          Result      Total Votes
Feb 23       Order   Franken        Count 12        47 (48)

Each of the 47 (or 48) are included within the list of 400 requested by the ECC on March 31st. The 400 are supposed to be provided to the court by Monday, April 6th at noon so the process of opening and counting each ballot can begin tomorrow (Tuesday) morning at 9:30 AM CT. At that point, the counting will begin with respect to Minnesota law; that is, because a ballot is instructed to be opened, it may not be counted. Overvoting and undervoting may have occurred, or the voter may have improperly marked their ballot; a multitude of issues could prevent a physical ballot from being counted above and beyond that which has already been determined by the ECC; simply that the absentee ballot was legally cast. The physical counting of these 400 ballots will take place in the same courtroom and may or may not be open to the public, due to privacy concerns; but in either case we should know the result Tuesday evening. If the process is public, theuptake.org will probably provide a live stream.

ECC Requests Delivery of 400 Ballots

4/2/2009 4:48:24 PM CT

After deliberating for about three weeks, the Election Contest Court broke their silence by releasing two orders, with more likely to follow. The first order governs the court's request for the delivery of exactly 400 absentee ballots, that have yet to be counted, to the Secretary of State's office for further review. The full text of the order is excerpted below; the memorandum follows within the provided PDF:

ORDER 1. The following materials shall be provided to the Office of the Minnesota Secretary of State no later than 12:00 noon on April 6, 2009 for review by the Court:
a. The absentee ballot return envelopes for the individuals identified in Exhibit A;
b. The absentee ballot return envelopes, absentee ballot applications, and federal postcard applications for the individuals identified in Exhibit B; and
c. The original voter registration application and absentee ballot return envelope for the individual identified in Exhibit C. 2. Absentee ballots determined by the Court to be legally cast shall be opened and counted on April 7, 2009 at 9:30 a.m. in Courtroom 300 of the Minnesota Judicial Center and the total be declared and certified for such use as might be appropriate by the United States Senate, this Court, or any other proper use under law. 3. A copy of this Order shall be furnished to each of the County Auditors, who shall be responsible for locating the ballots identified herein. All such ballots shall be transmitted to the Secretary of State pursuant to the directions in Exhibit D. 4. Legally cast absentee ballots shall be opened, sorted and counted by the Office of the Secretary of State in open court. Opening, sorting and counting shall proceed using the same methods as described in the Minnesota Supreme Court's Order of December 24, 2008. Upon opening, sorting and counting, the ballots shall be completely and finally separated from the envelopes in accordance with Minnesota's policy of ballot secrecy. The totals from the opening, sorting and counting shall be included in the results of the 2008 United States Senate election reported by the Minnesota Secretary of State. 5. The Court's Memorandum, attached herewith, is incorporated herein. 6. Any other relief not specifically ordered herein is DENIED. Source: Order for Delivery of Ballots to Office of the Minnesota Secretary of State for Review by the Court via MNCourts.gov

The three previously referenced exhibits contain the 400 voters whose ballots have been deemed worthy of future consideration for inclusion by the Election Contest Court. I have digitized the contents of these three exhibits below: Exhibit A: 393 Voters, [CSV, 14KB]
Exhibit B: 6 Voters, [CSV, 1KB]
Exhibit C: 1 Voter, [CSV, 1KB] Now, using the data provided above, an extrapolation can be preformed to determine the probable outcome of these 400 ballots. The most interesting case assumes complete inclusion, although other scenarios are provided: Extrapolations: ECC Requests by City [PDF, 127KB]

                      Identified       Extrapolation
                        Voters      Coleman      Franken
Total                     400        166.95       168.42
    Coleman Regions       242        116.60        84.95
    Franken Regions       158        50.35         83.47

If each and everyone of these 400 ballots is analyzed and eventually counted, Franken's lead will increase by about 1.47 votes based upon a linear extrapolation of the recounted vote totals within each voter's county/precinct/city; Franken already leads by 225 votes as certified by the Minnesota State Canvassing Board on January 5th. Despite the favorable extrapolation for the Franken campaign, it remains impossible to predict the outcome of these 400 ballots; but we do know the destiny of four ballots. The second order released by the ECC on Tuesday dealt with four petitioner's motion for summary judgment; the court's orders are presented below:

This matter comes before the Court on Petitioners' Second Renewed Motion for Summary Judgment. After consideration of the arguments of counsel, the written submission of the parties, and the pleadings in the case, IT IS HEREBY ORDERED: 1. Petitioners' Second Renewed Motion for Summary Judgment is granted in full. 2. That portion of the Court's March 11th Order granting summary judgment to Petitioners Donald and Donelda Applebee is vacated. 3. The attached Memorandum is incorporated as if fully set forth herein 4. Any other relief not fully set forth herein is expressly denied. Dated: March 31, 2009 Source: Order Granting Peitioners Second Renewed Motion for Summary Judgment via MNCourts.gov

The court granted four voters their requested summary judgment meaning their votes will be opened and counted by the ECC. It should also be noted that the four petitioner's names can be found within one of the three aforementioned exhibits. The order also vacated or undid a previous order granting the inclusion of two other voters' ballots. At the end of the day, at least four more ballots will be opened and counted, with the possibility of 396 still in the balance. We may also learn more about the court's view on double counting in the interim as the requested absentee ballots trickle into the Secretary of State's Office before the April 7th deadline. If the counting of some or all of the 400 requests does not materially change the situation, the court will still address all other counting issues for the sake of thoroughness, in the event of an appeal to the MN Supreme Court by either campaign. Update [6:07 AM CT] I've recomputed the above extrapolation to reflect the Nauen petitioners; I'll have a more complete synopsis later today or tomorrow. The new data implies that Franken will increase his lead by about 35 votes. Updated Extrapolation: ECC Requests by City [Nauen] [PDF, 137KB] Update II [6:20 AM CT 4/5/09 ] I found a series of errors within the original extrapolations; I've since updated the entire article to reflect these corrections, including links to the updated PDFs. I'll hopefully have time tomorrow to get write the article I intended to write today regarding the universe of absentee ballots which are to be counted.

Squashing Fiscal Abuse

3/23/2009 9:04:52 AM CT

The continuing saga of AIG's taxpayer funded bonuses may be eclipsed by another company's incompetence; Merrill Lynch is ready and willing according to the New York Times:

Merrill Lynch's $3.6 billion bonus pool has been among the most controversial payouts on Wall Street. But most of those bonuses, which included some 700 awards of over $1 million, would not be affected by a new bonus tax being considered in Congress. The tax, which passed in the House on Thursday, would affect only bonuses paid during 2009. Typically, Merrill's bonuses are paid in January, along with the rest of Wall Street's. But the investment bank pushed $2.5 billion of the bonuses out the door in December in advance of its merger with Bank of America. Source: New York Times

Without making any judgment with regard to the ethical payout of these bonuses, the legal argument is clearly supportive of Merrill's intentions. The creation of new law will be required to prevent, or inhibit the payout of these contractually obligated bonuses; but the creation of these new laws could establish dangerous precedents. The new administration has clearly stated their intent to limit these bonus, and it may possible for the President to directly intervene without Congress' assistance. Based upon our Friday article, it is still possible for Obama to abuse his Executive power to detain any person who "substantially supported" terrorists; the term used by the Bush Administration was "Enemy Combatant." Using the evidence presented by Bush's Government in the Rapp Declaration it becomes clear that the term "Enemy Combatant" encompassed financial terrorism; this nomenclature would then translate to "substantially supported" financial terrorists under the Obama Administration's new characterization. Before we continue, it is important to understand what the term "terrorist" actually encompasses; as defined by the Oxford English Dictionary:

[a. F. terroriste, f. L. terror TERROR: see -IST.] 1. As a political term: a. Applied to the Jacobins and their agents and partisans in the French Revolution, esp. to those connected with the Revolutionary tribunals during the "Reign of Terror". b. Any one who attempts to further his views by a system of coercive intimidation. In early use also applied spec. to members of one of the extreme revolutionary societies in Russia. The term now usually refers to a member of a clandestine or expatriate organization aiming to coerce an established government by acts of violence against it or its subjects. 2. Dyslogistically: One who entertains, professes, or tries to awaken or spread a feeling of terror or alarm; an alarmist, a scaremonger. 3. attrib. Hence terro'ristic, -'ristical adjs., characterized by or practising terrorism; also terro'ristically. Source: Oxford English Dictionary

Using the above bolded, definition one could argue that the large institutional banks coerced the Government into providing large payouts in an attempt to remedy the terror invoked as a result of selfish financial management. If the Obama Administration is serious about recouping the taxpayer funded bonuses, Obama, as President, could declare any recipient of these taxpayer funded bonuses an accomplice to financial terrorists. While I doubt my previous train of thought passes legal muster, a move of that magnitude may finally force TARP funded bonus recipients, and their respective companies, to realize that the entire financial scenario is "not a fucking game." If the individual agrees to return the bonus money, Obama could simply repeal or pardon his detention order.

Obama's Abusable Power

3/20/2009 4:58:25 PM CT

On September 11th, George Bush gained a lot of power, legal or otherwise, and whether you like it or not this power transferred to the new administration. Obama may be the most powerful president ever, but this new found power carries the requisite of responsibility. Given the current state of our nation, it may be possible, perhaps even responsible, for Obama to abuse his new found power for the greater good; but so far, his administration has remained effectively silent on the matter. This article will attempt to detail the legal processes associated with the creation and transition of this power; by understanding the circumstances, we can better understand the promise or peril of any Executive decision resulting from the use of these aforementioned powers. Our sleuthing follows the tail of Ali Saleh Kahlah al-Marri, an alleged (and in all likelihood) al Qaeda operative originally detained in 2001 as a material witness to the FBI's investigation of 9/11. Al-Marri was arrested in Peoria, Illinois and was eventually charged with credit card fraud; a trail date was then set for June of 2003. Evidence of these events can be found within a 2007 court judgment which we will be discussing later on; I've excerpted the relevant information below:

In February 2002, al-Marri was charged in the Southern District of New York with the possession of unauthorized or counterfeit credit-card numbers with the intent to defraud. A year later, in January 2003, he was charged in a second, six-count indictment, with two counts of making a false statement to the FBI, three counts of making a false statement on a bank application, and one count of using another person's identification for the purpose of influencing the action of a federally insured financial institution. Al-Marri pleaded not guilty to all of these charges. In May 2003, a federal district court in New York dismissed the charges against al-Marri for lack of venue. The Government then returned al-Marri to Peoria and he was reindicted in the Central District of Illinois on the same seven counts, to which he again pleaded not guilty. The district court set a July 21, 2003 trial date. On Friday, June 20, 2003, the court scheduled a hearing on pre-trial motions, including a motion to suppress evidence against al-Marri assertedly obtained by torture. On the following Monday, June 23, before that hearing could be held, the Government moved ex parte to dismiss the indictment based on an order signed that morning by the President. Source: Al-Marri v. Wright via USCourts.gov [PDF]

Before al-Marri could face his June 23rd trail, President Bush declared him an "Enemy Combatant" and initiated the process required to transfer him to the South Carolina equivalent of Guantanamo Bay. While imprisoned in South Carolina, the Federal District Court heeded the Government's request to dismiss all charges filed against al-Marri. Reading further in the aforementioned 2007 judgment reveals additional details of the just described sequence of events:

In the order, President George W. Bush stated that he "DETERMINE[D] for the United States of America that" al-Marri: (1) is an enemy combatant; (2) is closely associated with al Qaeda; (3) "engaged in conduct that constituted hostile and war-like acts, including conduct in preparation for acts of international terrorism;" (4) "possesses intelligence . . . that . . . would aid U.S. efforts to prevent attacks by al Qaeda;" and (5) "represents a continuing, present, and grave danger to the national security of the United States." The President determined that al-Marri's detention by the military was "necessary to prevent him from aiding al Qaeda" and thus ordered the Attorney General to surrender al- Marri to the Secretary of Defense, and the Secretary of Defense to "detain him as an enemy combatant." The federal district court in Illinois granted the Government's motion to dismiss the criminal indictment against al- Marri. In accordance with the President's order, al-Marri was then transferred to military custody and brought to the Naval Consolidated Brig in South Carolina. Source: Al-Marri v. Wright via USCourts.gov [PDF]

Al-Marri's counsel filed a petition, on his behalf, on July 8th, 2003 seeking a writ of habeas corpus in the Illinois jurisdiction of his original arrest; this petition was later dismissed citing a "lack of venue." Exactly one year later, his representation filed another similar petition in the South Carolina District Court, again requesting writ to habeas corpus. The Government responded on September 4th by citing the Declaration of Jeffrey N. Rapp, Director of the Joint Intelligence Task Force for Combating Terrorism, as support for the President's order to detain al-Marri as an enemy combatant. Mr. Rapp's declaration was 16 pages long and became known as the Rapp Declaration. The Rapp Declaration is presented below with a few pertinent excerpts highlighted with regard to a future article:

[The original contents of this document were classified, but the information has since been declassified as noted by the stricken text. Bold added for emphasis.] ~~SECRET//NOFORN~~ ~~Classified~~ Declaration of Mr. Jeffrey N. Rapp Director, Joint Intelligence Task Force for Combating Terrorism 1. (U) Pursuant to 28 U.S.C. § 1746, I, Jeffrey N. Raw, hereby declare that, to the best of my knowledge, information and belief, and under the penalty of perjury, the following is true and correct: Preamble 2 (U) I submit this Declaration for the Court's consideration in the matter of Al-Marri v. Hanft, Case Number 2:04-2257-26AJ, pending in the United States District Court for the District of South Carolina. 3. (U) Based on the information that I haw acquired in the course of my official duties, I am familiar with all the matters discussed in this Declaration. I am also familiar with the interviews of Ali Saleh Mohamed Kahlah Al-Marri (Al-Marri) conducted by agents of the Federal Bureau of Investigation and by personnel of the Department of Defense (DoD) once the DoD took custody of Al-Marri on 23 lune 2003 after he was declared an enemy combatant by the President of the United States. ... Overview 8. (~~S//NF~~) Al-Marri, also known as Abdulkareemm A. Almuslam, is currently being detained in the Naval Consolidated Brig in Charleston, South Carolina. The President of the United States has determined that he is closely associated with al Qaeda, an international terrorist organization with which the United States is at war. All detailed below, Al-Marri is an al Qaeda"sleeper" agent sent to the United States for the purpose of engaging in and facilitating terrorist activities subsequent to September 11, 2001. Al-Marri currently possesses information of high intelligence value, including information about personnel activities of al Qaeda. Prior to arriving in the United States on September 10.2001, Al-Marri met personally with Usama Bin Laden (Bin Laden) and volunteered for a martyr mission or to do anything else that al Qaeda requested. Al-Marri was assisted in his al Qaeda assignment to the United States by at least two high-level al Qaeda members: September 11, 2001 mastermind Khalid Shaykh Muhammed (KSM); and al Qaeda financier and September 11, 2001moneyman Mustafa Ahmed Al-Hawsawi (Al-Hawsawi). Al Qaedasent Al-Marri to the United States to facilitate other aI Qaeda operatives in carrying out post-September 11, 2001 terror attack. Al Qaeda also asked Al-Marri to explore computer hacking methods and the U.S. financial system. In addition, Al-Marri was trained by al Qaeda in the use of poisons and had detailed information concerning poisonous chemicals stored on his laptop computer. Information about Al-Marri's relationship with and activities on behalf of al-Qaeda has been obtained from and corroborated by multiple intelligence sources. ... 27. (~~S//NF~~) In addition, Al-Marri's laptop computer contained numerous computer programs typically utilized by computer hackers; "proxy" computer software which can be utilized to hide a user's origin or identity when connected to the internet; and bookmarked lists of favorite websites apparently devoted to computer hacking. Al Qaeda had tasked Al-Marri with exploring the possibility of hacking into the main frame computers of banks inside the U.S. to wipe out balances and otherwise wreak havoc with banking records in order to damages the U.S. economy. Al-Marri had discussed with al Qaeda other hacking operations as well, including hacking into the computers of banks and credit card companies, obtaining credit card account numbers, and using the these numbers to book airline reservations on five or six flights. This in accord with the belief that fulling booking flight with false reservations would result in loses to the airlines industry. ... Conclusion 35. (U) In conclusion, investigation has determined that Al-Marri was an active al Qaeda operative at the time of his entry into the United States on September 10, 2001. Al-Marri was sent to the United States at the behest of al Qaeda. Upon his arrival in the United States. Al-Marri engaged in conduct in preparation for acts of international terrorism intended to cause injury or adverse effects on the United States. Al-Marri's status has been subject to a rigorous review process and it has been determined that Al-Marri represents a continuing grave danger to the national security of the United States. Al-Marri must be detained to prevent him. from aiding al Qaeda in its efforts to attack the United States, its forces, other governmental personnel, or citizens. Source: Rapp Declaration via WashingtonPost [PDF] (Mirror)

Al-Marri was then permitted to respond to the Government's evidence; he contended that he was not an enemy combatant and moved for summary judgment. The district court would eventually deny his motion, but the final say was delegated to a magistrate judge. The magistrate judge eventually ruled that the Rapp Declaration provided sufficient grounds for classification as an enemy combatant; the magistrate judge directed al-Marri to file rebuttal evidence. In response to the magistrate judge, Al-Marri denied their assertion, but filed no rebuttal evidence citing the court's burden to provide evidence of his guilt; he argued that the Rapp Declaration did not suffice. In 2006, the magistrate judge recommended dismissal of al-Marri's case and the district court adopted this suggestion; al-Marri then signaled his intent to appeal. The US Court of Appeals for the Fourth Circuit presided over al-Marri's appeal and issued the following ruling on June 11th, 2007. The 4th Circuit unanimously reversed the district court's ruling with regard to al-Marri's habeas corpus argument. The court did not however reach a unanimous verdict with respect to the issue of Executive power; one of the three judges voted to uphold the district court's ruling. The full text of the majority ruling is presented below:

IV. For the foregoing reasons, we reverse the judgment of the district court dismissing al-Marri's petition for a writ of habeas corpus. We remand the case to that court with instructions to issue a writ of habeas corpus directing the Secretary of Defense to release al-Marri from military custody within a reasonable period of time to be set by the district court. The Government can transfer al-Marri to civilian authorities to face criminal charges, initiate deportation proceedings against him, hold him as a material witness in connection with grand jury proceedings, or detain him for a limited time pursuant to the Patriot Act. But military detention of al-Marri must cease. Source: Judgment Al-Marri v. Wright via USCourts.gov [PDF]

The 4th Circuit court then held an en banc rehearing on their previous ruling; the date of the hearing was October 31, 2007. On July 15th, 2008 they issued two 5-4 decisions; their first ruling stated that if the Government's allegations are in fact true, al-Marri could be held indefinitely within a military prison as an enemy combatant; the court also ruled that al-Marri was not provided his constitutionally defined due process of law to determine whether the aforementioned allegations were in fact true. The complete opinion of the en banc rehearing is quoted below:

ON REHEARING EN BANC ... OPINION PER CURIAM: Ali Saleh Kahlah al-Marri filed a petition for a writ of habeas corpus challenging his military detention as an enemy combatant. After the district court denied all relief, al-Marri noted this appeal. A divided panel of this court reversed the judgment of the district court and ordered that al-Marri's military detention cease. See Al-Marri v. Wright, 487 F.3d 160 (4th Cir. 2007). Subsequently, this court vacated that judgment and considered the case en banc. The parties present two principal issues for our consideration: (1) assuming the Government's allegations about al-Marri are true, whether Congress has empowered the President to detain al-Marri as an enemy combatant; and (2) assuming Congress has empowered the President to detain al-Marri as an enemy combatant provided the Government's allegations against him are true, whether al-Marri has been afforded sufficient process to challenge his designation as an enemy combatant.* Having considered the briefs and arguments of the parties, the en banc court now holds: (1) by a 5 to 4 vote (Chief Judge Williams and Judges Wilkinson, Niemeyer, Traxler, and Duncan voting in the affirmative; Judges Michael, Motz, King, and Gregory voting in the negative), that, if the Government's allegations about al-Marri are true, Congress has empowered the President to detain him as an enemy combatant; and (2) by a 5 to 4 vote (Judges Michael, Motz, Traxler, King, and Gregory voting in the affirmative; Chief Judge Williams and Judges Wilkinson, Niemeyer, and Duncan voting in the negative), that, assuming Congress has empowered the President to detain al-Marri as an enemy combatant provided the Government's allegations against him are true, al-Marri has not been afforded sufficient process to challenge his designation as an enemy combatant. Accordingly, the judgment of the district court is reversed and remanded for further proceedings consistent with the opinions that follow. ---------------- *We deny the Government's motion to dismiss this case for lack of jurisdiction. The Government relied on section 7 of the Military Commissions Act (MCA) of 2006, Pub. L. No. 109-366, 120 Stat. 2600, which amended the Detainee Treatment Act (DTA) of 2005, Pub. L. No. 109-148, § 1005(e)(1), 119 Stat. 2680, 2741-42. After we heard en banc argument in this case, the Supreme Court declared section 7 of the MCA unconstitutional. See Boumediene v. Bush, 553 U.S. ___, ___, slip op. at 64 (June 12, 2008). The Government now concedes that we have jurisdiction over al-Marri's habeas petition. Source: Al-Marri v. Pucciarelli via USCourts.gov [PDF]

In response to the 4th Circuit's en banc rehearing, al-Marri's representation filed a petition for certiorari on September 19th, 2008 with the US Supreme Court. The Supreme Court would accept the appeal on December 5th, 2008 pertaining to the following question:

08-368 AL-MARRI V. PUCCIARELLI DECISION BELOW:534 F.3d 213 LOWER COURT CASE NUMBER: 06-7427 QUESTIONS PRESENTED: Does the Authorization for Use of Military Force (AUMF), 115 Stat. 224, authorize and if so does the Constitution allow-the seizure and indefinite military detention of a person lawfully residing in the United States, without criminal charge or trial, based on government assertions that the detainee conspired with al Qaeda to engage in terrorist activities? CERT. GRANTED 12/5/2008 Source: 08-368 Al-Marri v. Pucciarelli Questions Presented via SupremeCourtUS.gov [PDF]

Between the time of the initial hearing and the Supreme Court's issuance of a ruling, a new Executive took office. Just two days into his presidency, Barack Obama issued a memorandum detailing his administration's intent to review the detention of Ali Saleh Kahlah al-Marri. The review is to be completed on or before March 23, 2009. The Supreme Court then issued their ruling on March 6th:

FRIDAY, MARCH 6, 2009 CERTIORARI -- SUMMARY DISPOSITION AL-MARRI, ALI V. SPAGONE, DANIEL 08-368 (08A755) The application of the Acting Solicitor General respecting the custody and transfer of petitioner, seeking to release petitioner from military custody and transfer him to the custody of the Attorney General, presented to The Chief Justice and by him referred to the Court is granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss the appeal as moot. See United States v. Munsingwear, Inc., 340 U.S. 36 (1950). Source: Al-Marri v. Spagone Summary Certiorari Summary Disposition via SupremeCourtUS.gov [PDF]

A press release by the American Civil Liberties Union effectively describes the ramifications of the Supreme Court's decision:

WASHINGTON - The U.S. Supreme Court today vacated a lower court decision giving the president the extraordinary power to seize and indefinitely detain U.S. citizens or residents without charge or trial. The case was brought by the American Civil Liberties Union on behalf of Ali Saleh Kahlah al-Marri, who, after being held for almost six years in military detention, was indicted last week in federal court and charged with two counts of material support for terrorism. In July 2008, the full U.S. Court of Appeals for the Fourth Circuit ruled in a fractured decision that the president had legal authority to imprison al-Marri indefinitely without charge. As one judge noted in dissent, however, to accept the government's claim of extraordinary detention power would have "disastrous consequences for the Constitution-and the country." The Supreme Court vacated that decision and dismissed the case as moot. The following can be attributed to Jonathan Hafetz, staff attorney with the ACLU National Security Project and lead counsel in al-Marri's case: "While we would have preferred a Supreme Court ruling that U.S. citizens and lawful residents detained in the U.S. cannot be held in military custody as 'enemy combatants' without charges or trial, the Supreme Court nonetheless took an important step today by vacating a lower court decision that had upheld the Bush administration's authority to designate al-Marri as an 'enemy combatant.' Congress never granted the president that authority and the Constitution does not permit it. We trust that the Obama administration will not repeat the abuses of the Bush administration having now chosen to prosecute Mr. al-Marri in federal court rather than defend the Bush administration's actions in this case." Source: Supreme Court Vacates Decision Giving President Indefinite Detention Power In Al-Marri Case via ACLU.org

Obama appears to be taking the necessary steps, at least in the eyes of public opinion, to limit his own power, but the legal door has yet to be closed. Noah Feldman of Harvard University wrote an interesting and very informed op-ed in Thursday's edition of the New York Times that discussed the entire al-Marri debacle as it relates to President Obama. Prof. Feldman places Obama within the precipice of the legal doorway, unable, or perhaps unwilling to make an immediate or definitive decision with regard to his Executive power. Desperate times call for desperate measures, and Obama's inherited power could help alleviate the current angst on Wall Street; we'll provide further analysis later in the week.

Colem4n g0t Haxz0red?

3/12/2009 1:41:44 PM CT

On Tuesday, March 10th, the website WikiLeaks.org published two files anonymously obtained in connection to the Coleman campaign's server crash on January 28th. (As an aside, WikiLeaks.org was also responsible for publishing the content of Sarah Palin's Yahoo.com email account; a University of Tennessee student was eventually charged.) To understand how this data became available, let's recall what I wrote on January 28th with regard to this topic:

Now to cover the issue of the "fake" controversy associated with Norm's website. Norm's website was not intentionally taken down by anybody within the campaign. The site is run from a remote location. I have logically concluded that his site crashed for one of two reasons, (i) either an extreme amount of traffic, or (ii) poor coding resulting in a memory leak. If the site was getting hit with a decent amount of traffic, which does appear to be the case, the number of database connections may have exceeded the allowable limit due to poor coding. When this happens there is essentially nothing that can be done from a remote location. The server is inaccessible because the processor is always trying to catch up with the current number of requests. In order to fix the problem, the admin would need access to the server, but they could not gain access because the server was constantly busy. Their solution was to redirect traffic to the IP address 1.1.1.1. They would have been wise to setup of an error page on another server and redirect to that, but I don't know the details. Whenever the IP address is changed, the new address must propagate back through the internet; this can take up to 72 hours. To compensate for this delay, they changed the TTL to 600 for the 1.1.1.1 IP address, which is a very small amount of time in this application. They wanted the dummy address to propagate to as many people as possible as fast as possible so that they could attempt to fix the original error. In changing the TTL they are able to gain access to the original server faster, without the new address propagating through the internet over the actual server address. In changing the address they made a calculated decision; one I would guess they currently regret. When their old server came back online, each and every file they had hosted was available for download. There were documents available that would not have justified any publicity stunt. My guess is that somebody outside of the campaign initially discovered the outage and began to push the "excessive traffic from voter database leads to crash" story. At this point the story was picked up by drudge.com and the Coleman was really left with really no choice but to propel the story. If they had actually acknowledged the problem, the news would have spread faster than they could have fixed; which happened anyway, but it took some time for people to figure out that files were available. I do not believe the initial crash was intentional, I believe it was a very poor implementation of technology that forced the Coleman campaign to run with the spin. Source: Litigation, Day 3 via VoteForAmerica.net

After Wednesday's litigation proceedings, Norm Coleman directly addressed the issues relating to the leaked information: The contents of Coleman's donor list and voluteer roster were released Tuesday night at about 9 PM by WikiLeaks.org after the affected individuals were notified, via email, of their inclusion within the leaked database. According to WikiLeaks.org, the uncompressed MySql database comprises 4,300 MBs across 36 individual tables; the compressed table was named "database.tar.gz" and was listed as 205 MBs in size. Two of the leaked tables contain illegal, personal information and a description of their contents is presented below, as quoted from WikiLeaks.org:

contribution Contains campaign contribution information. Unique ID number, first name, last name, city, state, zip, phone, e-mail, employer, title, type of credit card used, name on card, last four of credit card, CVV2 value of the card, donation amount, authorization code from credit card processor, AVS (address verification) match, and a timestamp. loadtime Stores significant information about web views, including user agents and IP addresses. ALSO CONTAINS ALL POST DATA -- THIS INCLUDES UNENCRYPTED CREDIT CARD INFORMATION. Source: WikiLeaks.org

The contribution table contains the "card security code" as defined below within Minnesota Stat. § 325E.64; possession of this data beyond the initial 48 hours of the electronic transaction is illegal:

325E.64 ACCESS DEVICES; BREACH OF SECURITY. Subdivision 1. Definitions. (a) For purposes of this section, the terms defined in this subdivision have the meanings given them. ... (d) "Card security code" means the three-digit or four-digit value printed on an access device or contained in the microprocessor chip or magnetic stripe of an access device which is used to validate access device information during the authorization process. ... Subd. 2. Security or identification information; retention prohibited. No person or entity conducting business in Minnesota that accepts an access device in connection with a transaction shall retain the card security code data, the PIN verification code number, or the full contents of any track of magnetic stripe data, subsequent to the authorization of the transaction or in the case of a PIN debit transaction, subsequent to 48 hours after authorization of the transaction. A person or entity is in violation of this section if its service provider retains such data subsequent to the authorization of the transaction or in the case of a PIN debit transaction, subsequent to 48 hours after authorization of the transaction. Source: 325E.64, 2008 Minnesota Statutes via Minnesota Office of the Revisor of Statutes

The loadtime table also may contain illegal information in correlation with Minnesota Stat. § 325E.61:

325E.61 DATA WAREHOUSES; NOTICE REQUIRED FOR CERTAIN DISCLOSURES. Subdivision 1. Disclosure of personal information; notice required. (a) Any person or business that conducts business in this state, and that owns or licenses data that includes personal information, shall disclose any breach of the security of the system following discovery or notification of the breach in the security of the data to any resident of this state whose unencrypted personal information was, or is reasonably believed to have been, acquired by an unauthorized person. The disclosure must be made in the most expedient time possible and without unreasonable delay, consistent with the legitimate needs of law enforcement, as provided in paragraph (c), or with any measures necessary to determine the scope of the breach, identify the individuals affected, and restore the reasonable integrity of the data system. ... (e) For purposes of this section and section 13.055, subdivision 6, "personal information" means an individual's first name or first initial and last name in combination with any one or more of the following data elements, when the data element is not secured by encryption or another method of technology that makes electronic data unreadable or unusable, or was secured and the encryption key, password, or other means necessary for reading or using the data was also acquired: (1) Social Security number; (2) driver's license number or Minnesota identification card number; or (3) account number or credit or debit card number, in combination with any required security code, access code, or password that would permit access to an individual's financial account. Source: 25E.61, 2008 Minnesota Statutes via Minnesota Office of the Revisor of Statutes

The singular presence of credit card numbers would not constitute "personal information," but in culmination with the contribution table, it would likely become possible for a diligent wrong-doer to associate a singular credit card number with the names listed in the contribution table. I cannot say this for certain as I have not seen the contents of the loadtime table, but it seems very likely, that with some basic data parsing skills, it would be possible to access the financial account of some if not all individuals listed within the contribution table. Norm Coleman's campaign appears to have unintentionally violated the law, based upon the information provided by WikiLeaks.org and the referenced legal statues.

Litigation, Day 33 Press Conferences

3/12/2009 1:39:23 PM CT

I've posted video of each campaign's press conference, which followed Wednesday's litigation activities. Marc Elias, of the Franken campaign went first: Ben Ginsberg, of the Coleman campaign, then stepped up to the plate: Norm Coleman then made a brief statement addressing his leaked donor database; Fritz Knaak then fielded questions from the media on the same subject: The three videos presented above are available for download: Marc Elias: WMV, 147 MB, 9:00
Ben Ginsberg: WMV, 142 MB, 8:39
Norm Coleman: WMV, 122 MB, 7:29 I'll update this post later with some pictures of the press conference area.

Secrecy Envelope Search Complete

3/9/2009 11:52:08 PM CT

On Thursday, February 26th, the Election Contest Tribunal commisioned a search for valid registration forms within 1526 currently rejected absentee ballots. The conclusion of this search was supposed to have occurred last Wednesday, March 4th, but for whatever reason the release of this information was delayed until today. The Minneapolis Star Tribune apparently obtained the search results late Monday afternoon as evidenced in one of their online articles:

Here is a county breakdown of 89 rejected-absentee ballot envelopes that were found to have properly completed registration cards. The letter in parentheses after the county name indicates which candidate carried that county (C - Coleman; F- Franken); it does not indicate for whom these ballots were cast. Anoka (C), 1; Clay (C), 4; Crow Wing (C), 1; Dakota (C), 15; Faribault (C), 1; Goodhue (C), 1; Hennepin (F), 15 (Brooklyn Center, 1; Corcoran, 1; Edina, 1; Maple Grove, 2; Minneapolis, 8; Plymouth, 2); Koochiching (F), 1; McLeod (C), 3; Morrison (C), 1; Mower (F), 3; Olmsted (C), 15; Polk (C), 1; Pope (C), 1; Ramsey (F), 6; Steele (C), 1; Swift (F), 1; Washington (C), 14; Winona (F), 2; Wright (C), 1. Source: Minneapolis Star Tribune

The above quote is simply an excerpt contained within the current article, but the original posting featured only the above text, but with the "89" replaced with "88." The county list remained unchanged through this revision; in fact the current list still adds up to 88. TheUpTake.org was the first to report the "89" through an exchange between a Coleman attorney and a reporter during the afternoon press conference; the "89" reference occurs at about the 3:50 mark. While the TheUpTake.org provided the total count, they did not publish a county level listing. I have absolutely no idea why the Star Tribune amended their original figure, but I can, and will speculate. One of following scenarios must have occurred within Star Tribune's internal mechanisms 1. They obtained the original listing provided by the Secretary of State's office but failed to adequately report the information contained therein. They literally would have to provide a link to a PDF, which isn't that difficult. 2. Or they may have received the information from a secondary source, perhaps one of the campaigns. If we assume scenario (1) occurred, the the Star Tribune absolutely dropped the ball; but lets assume that the Star Tribune is capable of doing their job, which may not be a reasonable assumption, but stick with me. Onto scenario (2); if they did receive the list from some other source, why would they make the change to reflect "89" instead of their originally reported "88." It doesn't make any sense for them to change the count without changing the list. The only thing that changed was a Coleman attorney stating "89" in a press conference, after quoting a reporter's question. Ben Ginsberg, the Coleman attorney, would have had absolutely no way of knowing the exact number and likely just trusted the reporter in the moment. This then begs the question, why did the Star Tribune assign more weight to a Coleman Press Conference than they did their original source, whatever it was? I am personally assigning more weight to the presence of a table than I am to the proceedings of this particular press conference. Its also entirely possible that the Star Tribune simply couldn't reproduce a 25 line table from a PDF, and in catching their error, they simply adjusted the total to "89," and ignored the error contained within the table. In any case, the Star Tribune's data is the only data currently available, and as such I'm going to assume that their original report of "88" is correct because that is what their table reads. If something changes tomorrow, I'll update this article. I parsed the Star Tribune's table and created another table [PDF] complete with the final recounted votes from each county/municipality listed. I've also created a new map that depicts the origin of each successful registration search; the colorization and shading process is the same as yesterday with divisions of 5, and 10 votes: I've also extrapolated the likely outcome from each of these "88" votes below, assuming all "88" are eventually counted:

                       Identified        Extrapolation
                         Voters       Coleman      Franken
Total                      88          37.01        36.37
    Coleman Counties       66          30.57        24.11
    Franken Counties       22           6.45        12.25

Extrapolations: PDF, 138 KB Neither candidate is likely to gain any ground from these "88" ballots; in fact, if each of these ballots are included, Coleman is only expected to gain .65 votes. Moral of the story, Coleman will need more than these "88" votes to overcome the current 225 vote deficit; at least based upon the county/municipality trend. The Star Tribune article also went on to talk about the Nauen 30, a group of thirty petitioner seeking to intervene into the Election Contest through the Minnesota Supreme Court. This group originally introduced their petition to the Minnesota Supreme Court on February 23rd. The MNSC then issued a ruling Monday afternoon pertaining to these thirty voters; the entire order is quoted below:

Based on petitioners' notice of withdrawal of their petition and upon all the files, records and proceedings herein, IT IS HEREBY ORDERED that the petition of Harold Shad, et al., under Minn. Stat. § 204B.44 be, and the same is, dismissed with prejudice. Dated: March 9, 2009 Source: Order to Dismiss Petition by Certain Minnesota Voters to Have Their Votes Counted Pursuant to Minn. Stat. § 204B.44 via MNCourts.gov

While these voters will not be allowed legal representation within the ECC proceedings, it is still possible for their votes to be counted by some other means. The result of this ruling was good news for Coleman as these 30 voters are widely assumed to have cast their ballots for Franken. At the end of the day, the Coleman and Franken campaigns likely looked in the mirror and thought it was a good day, and sadly, the Star Tribune probably did the same.

Rejected Absentee Map by County

3/9/2009 1:57:55 AM CT

With the Minnesota Senate Election Contest heading into it's seventh week, the issue of rejected absentee ballots will likely rise to the forefront of the discussion. While the counting of additional ballots is obviously big news, the number of previously rejected absentee ballots eligible for reconsideration is somewhat vague, although a definitive ceiling does exist. Using a number of court filings as a guide and our previous compilations, I've generated four maps that should hopefully aid in the understanding of the rejected absentee ballot universe. The court filing exhibits are generally provided at the county level, but occasionally precinct information is entered. In the case of Hennepin County, each municipality is responsible for the sorting and counting of absentee ballots, and despite this distinction within the filings, a municipality map is not available; to account for this degradation of data, Hennepin County is shaded black in the following maps. All of the data is scaled into the county level representation as our maps are only presentable at the county level. The map below provides a graphical visualization of the remaining absentee ballots that may merit inclusion into the ECC's final count. The maps may initially seem cryptic, but its all explained below. I've also posted html and BBcode for each image so you can help spread the word, and keep others in the know. Rejected Absentee Ballot Universe by County (490 x 610 Pixels):

HTML Code:

<a href="http://voteforamerica.net"><img src="http://www.voteforamerica.net/image.aspx?Type=Minnesota_29" alt="VoteForAmerica.net Minnesota Senate Rejected Absentee Ballot Universe Map by County" border="0" /></a>

Forum Code:

[url=http://voteforamerica.net] [img]http://voteforamerica.net/image.aspx?Type=Minnesota_29[/img] [/url] I'll now attempt to explain the peculiarities of each map and the associated colorization process. Rejected Absentees (0%, 10, 100)
Source: Absentee Ballot Universe [PDF] The upper left most map of Minnesota depicts the complete set of rejected absentee ballots, as presented by the Coleman and Franken campaigns. The total is arrived at by adding the entirety of Coleman's list with Franken's Y list; Franken's X List includes 781 voters already listed within Coleman's list and is therefore not included in the calculation. The shading of each county represents the number of ballots present within each county, the darker the shading the more voters. The lightest shading is 10 identified rejections or less, the middle shading is 10 to 100 ballots and the darkest shades represents a county with 100 ballots or more. The color of each county represents the final recount result as certified by the MN State Canvassing Board on January 5th. The color purple depicts a county in which the victor was decided by less than 3%. A red or blue county illustrates a county won by either Coleman or Franken respectively. If a county is shaded gray, there are no ballots presented from that county on any list. The color and shading degradations are identical for all four maps. Coleman Website (0%, 10, 100)
Source: Coleman's Rejected Absentee Ballot List v3 [PDF] This map depicts the county of origin for each voter listed at "County Every Valid Vote" portion of Norm Coleman's website. While Coleman's list totals 4,458 voters, it is unlikely that each listed voter will be enfranchised upon reconsideration. Coleman first published this list on or before February 7th but the ECC issued a major ruling on February 13th. This new ruling further restrcited the universe of re-considerable absentee ballots from a list of nineteen categories down to seven. Franken X+Y List (0%, 10, 100)
Source: Franken's List X [PDF] and Franken's List Y [PDF] Franken originally submitted 792 rejected voters, but he later ameneded his list after the ECC's February 13th ruling. Exhibit X featured 784 voters who were already entered into evidence, and Exhibit Y featured 804 voters who were exclusively identified by the Franken campaign. Based upon the timing of these two exhibits, its is likely that a vast majority of these 1,585 voters fall within one of the categories outlined by the ECC; but there are going to be exceptions. Registration Search (0%, 10, 100)
Source: Absentee Ballot Registration Search List [PDF] The last map reflects the listing of February 26th's order by the Election Contest Court which commissioned a search for registration forms contained within some 1,526 currently rejected absentee ballots. The result of this search was supposed to be completed by Wednesday, March 4th, but the results have yet to be made public. If an envelope is found to have a valid registration card, the entire absentee ballot was almost certainly legally cast and will likely be opened, that is assuming there are no other errors. In total, there are 5,262 rejected absentee ballots that have not currently been counted, but I expect some of these ballots to be opened and counted within the coming week. The result of the registration search will be the next major milestone in the litigation process and could come as early as Monday.

MNSC: Election Certificate Must Wait

3/6/2009 2:56:07 PM CT

The Minnesota Supreme Court finally ruled on the January 13th petition by Al Franken to force the Governor of Minnesota and the SOS to issue an election certificate based upon the recount result. The filing is 24 pages long and is text-searchable. I've just posted the body of the ruling along with the first and last paragraphs of the opinion:

Filed: March 6, 2009 SYLLABUS 1. Minnesota Statutes § 204C.40, subd. 2 (2008), which provides that a certificate of election cannot be issued until the state courts have finally decided an election contest pending under chapter 209, applies to an election for the United States Senate. 2. There is no federal statutory mandate that a state issue a certificate of election by the date designated by Congress for commencement of newly-elected Senators' terms, and because the Senate has authority under U.S. Const. art. I, 7sect; 5, to seat a Senator without a state-issued certificate of election, application of Minn. Stat. § 204C.40, subd. 2, to an election for the Senate does not usurp the Senate's authority and does not conflict with federal law. Petition denied. OPINION PER CURIAM. This matter is before our court on a petition of Al Franken brought under Minn. Stat. § 204B.44 (2008). The petition seeks an order requiring respondents, Governor Timothy Pawlenty and Secretary of State Mark Ritchie, to promptly prepare and countersign a certificate of election and deliver the certificate to the Secretary of the United States Senate, without awaiting the conclusion of an election contest pending in state district court under Minn. Stat. ch. 209 (2008). Because we conclude that neither state nor federal law requires issuance of a certificate of election before the election contest is completed, we deny the petition. ... We conclude that there is no federal statutory mandate that a state issue a certificate of election by the date designated by Congress for the commencement of newly-elected Senators' terms. And because the Senate has authority to seat a Senator without a state-issued certificate of election, application of the contest tolling provision in Minn. Stat. § 204C.40, subd. 2, to an election for the United States Senate does not usurp the Senate's power and does not conflict with federal law, either statutory or constitutional. Petition denied. Source: Supreme Court Order on Al Franken's Petition for Order to Issue Certificate of Election via MNCourts.gov [PDF]

Franken will have to wait until after the election contest, assuming he does eventually win, to assume his seat in the US Senate. It's also interesting to note that Franken's seating is not contingent upon the certificate from the State of Minnesota. The US Constitution describes the grounds under which an individual shall be admitted to the Senate:

[Article 1] Section 5. Each House shall be the judge of the elections, returns and qualifications of its own members, and a majority of each shall constitute a quorum to do business; but a smaller number may adjourn from day to day, and may be authorized to compel the attendance of absent members, in such manner, and under such penalties as each House may provide. Source: US Constitution via Law.Cornell.edu

If the Senate wanted to seat Al Franken, they could. Harry Reid (D), the Senate Majority Leader, has clearly demonstrated that a certificate is essentially required to seat a Senator; both based upon the Roland Burris situation and Reid's own inability to follow through on numerous vows to seat Al Franken. Minnesota will be without a second US Senator, at least, until the Election Contest Court declares a victor.

More Probability and a Public Poll

3/6/2009 2:07:26 AM CT

In yesterday's article, I covered the probabilities associated with invalid votes and how their inclusion (or exclusion) could alter the outcome of the election. Today, I take it one step further by breaking down the math by district; either precinct, county or municipality depending upon the data set. I'll explain the math first, and then I'll present the results. Today's formula arises from the same paper I previously covered, but this formula is slightly more complex.

Analysis by subdistricts. If k_i votes are removed in the i^th district, an elaboration of the global analysis shows that the condition for a reversal is that an approximately standard normal variable z will exceed the constant. Source: Mathematical Probability in Election Challenges via JSTOR.org [PDF]

Using this information and what we already know from the previous article, we can determine the probability of a given number of errors, across a series of districts, affecting the outcome of the election: The above formula was then applied where, α is a vector representing the number of Franken votes in a given district; &beta a vector of Coleman votes in a given district and κ a vector containing the number of potentially invalid errors using yesterday's definition and assumption. The variables a and b contain the number of total votes received by each of the two leading candidates; 1,212,431 and 1,212,206 respectively. The probabilistic results are depicted below using data from six previously provided tables:

Rejected List               z       Pr(z)    Ballots   Proj
Anomalies by Precinct    .220910   41.258%    1,391   + 5 Col
Anomalies by County      .015925   49.364%    1,391   +31 Fra
Coleman List v3          .000854   49.659%    4,458   +45 Col
Franken X                .029226   48.834%      781   +15 Fra
Franken Y                .030776   48.772%      804   +63 Fra
Registration Error       .018800   49.250%    1,526   + 4 Fra
Statewide*              2.755361     .293%    6,653     N/A

Today's result varies significantly from yesterday's result[*], which depicted a probability of <1%. The bottom line is that if there are errors, and they can legally be corrected, Coleman could overcome the current deficit of 225 votes. Now onto the actual litigation proceedings; the MN Supreme Court released three documents today, and MinnPost obtained a fourth filed by the Election Contest Court. I've posted links to these documents below, but I have not had time to review them: 1. Motion of Norm Coleman to Intervene (3-5-09) via MNCourts.gov [PDF]
2. Affidavit of Charles N. Nauen (3-3-09) via MNCourts.gov [PDF]
3. Memorandum Regarding Timeliness of Petition (3-3-09) via MNCourts.gov [PDF]
4. Franken's Motion to Dismiss via MinnPost.com [PDF] Rasmussen Reports just released a new poll detailing the whole MN Senate Situation and the public's response, here are the highlights:

Forty-seven percent (47%) of Minnesota voters now believe Democrat Al Franken has been elected to the U.S. Senate in a race so close that it's been working its way through the state's court system for the last four months. Thirty-five percent (35%) believe incumbent Republican Senator Norm Coleman will be re-elected, and 18% are not sure in the latest Rasmussen Reports survey of Minnesota voters. Coleman, who now trails Franken, has proposed that the state vote again because of the closeness of the race, but Minnesota voters are almost evenly divided on his proposal. Forty-six percent (46%) think they should vote again, but 44% disagree. Ten percent (10%) are not sure which is best. Not surprisingly, 71% of Republicans support a revote, while 69% of Democrats are opposed. Among voters not affiliated with either major party, a revote is favored by 12 points. Source: Rasmussen Reports

Based upon the results, it appears as though the partisan interviewee responded along partisan lines, while the self described independent voter took an independent position. If you look at the Nov 4th exit polls, it appears as though these self described independents tended to favor Coleman over Franken by about 20%. Having established this potential bias, I think its fair to say that these independent voters present the least biased opinion and they seem to support the notion that Franken won, but that another election would be favorable. In the end however it is not public opinion that will decided the victor, it is the opinion of the three judges presiding over the litigation process. Update [8:46 PM CT 3/6/2009]: I made the same mistake when computing the probabilities in this article, as I did in the original. The errors have since been corrected; the equation image and table have been updated to reflect these changes. The fundamental conclusion of the original result still holds as the changes actually improved the overturning probability. The probability that the invalid votes could overturn the current result answers the question of do these inaccuracies matter? The current answer is yes at around 50% for the six calculated lists; the nature of each list does not preclude complete conclusion, as such, these percentages represent the maximum overturning probability. With a 40% probability of affecting the final outcome, the identified inaccuracies, by both campaigns, deserve to be addressed within the litigation process; which is exactly why the trial has progressed into it's 30th day.

MN Senate: The Year 1973 Called

3/5/2009 2:57:08 AM CT

First off, there were no new court filings today and relatively little occurred during the actual trial. The Franken campaign called a number of voters to the stand and Mr. Mansky, the Ramsey County Elections Director, returned to testify about election judge training. Secondly, and most importantly, I discovered an academic paper written in the year 1973 by a Harvard professor and a Columbia University professor; I came across the document while searching for the court case Santucci v. Power [25 N.Y.2d 897, 252 N.E.2d 128, 304 N.Y.S.2d 593 (1969).]. Prof. Micheal O. Finkelstein and Prof. Herbert E. Robbins coauthored this paper entitled Mathematical Probability in Election Challenges; in spite of its age, the paper is surprisingly relevant to the Minnesota Election Contest at hand. The first paragraph begins with a carbon copy of Coleman's present position:

Defeated candidates in primary elections sometimes challenge the results in court and collect evidence of irregularities in support of their claims that the contests should be rerun. Frequently, this evidence consists solely of proof that certain numbers of persons voted who were not qualified, with no evidence of fraud and no indication as to how such persons voted. How large must this group be before a new election should be ordered? Source: Mathematical Probability in Election Challenges via JSTOR.org [PDF]

Let's take a quick look at the current group of potentially erroneous and yet to be counted ballots within the realm of the Minnesota Senate Litigation:

804^A + 4,458^B + 1,391^C = 6,653 A. Franken's Amended List: Within Franken's list of wrongfully rejected absentee ballots he presents 1,585 voters by name, but 781 are also found within Coleman's list. This leaves 804 new and unique voters presented by Franken. B. More Extrapolations and Interventions: The Coleman campaign listed 4,458 voters by name, on their website, whom they believe had their absentee ballots improperly rejected. This number is realistically far less based upon the court's constriction of eligible absentee ballots. C. Coleman Futile Election Contest: The 1,391 represents the number of votes above and beyond the number of voters recorded on Election Day within each precinct in Minnesota. While the Harvard paper focuses strictly on New York law, it does present some interesting precedents as well as an excellent theoretical explanation of the probability involved. I would highly recommend reading the entire paper as its only eight pages. The next four paragraphs cover the aforementioned precedents as excerpted below:

The New York Election Law provides that a new primary election may be ordered when the "irregularities .. . render impossible a determination as to who rightfully was ... elected." Consider a two-candidate contest in which the winner prevails by one hundred votes out of ten thousand. If there are 150 irregular voters, it is possible that more than 125 of them voted for the winner, so that their elimination would reverse the election. Does this possibility mean that the rightful winner cannot be determined within the meaning of the statute? The courts have answered this question with intuitive assessments of the probability that the result would be reversed if the challenged votes were removed. Thus, the Court of Appeals has articulated and applied the principle that the party attempting to impeach the results must show that the "irregularities are sufficiently large in number to establish the probability that the result would be changed by a shift in, or invalidation of, the questioned votes? Two polar assessments of the relevant probabilities may be illustrated by comparing Ippolito v. Power: with De Martini v. Power" In Ippolito, the winner's plurality was 17 votes out of 2,827; there were 101 suspect or invalid votes. The court affirmed the lower court's ordering of a new election. Evidently relying on intuition, the court concluded that " it does not strain the probabilities to assume a likelihood that the questioned votes produced or could produce a change in the result." In De Martini, out of 5,250 votes, 136 were declared irregular and invalidated, no fraud being involved. The winner's plurality was 62 votes . The lower courts and Court of Appeals differed in their estimates of the relevant probability. The Supreme Court ordered a new election because "it is not beyond likelihood that the small difference of 62 votes could be altered in a new election?" The Appellate Division unanimously affirmed. In reversing, the Court of Appeals observed that the majority of the winner would not evaporate unless at least 99 votes-i.e., at least 72.8% of the irregularities-had been cast in her favor. The court found this unlikely: " It taxes credulity to assume that, in so close a contest, such an extreme percentage of invalid votes would be cast in one direction ." It concluded that "a valid determination is not rendered impossible ... by the remote possibility of a changed result . . . ." Subjective estimates of the relevant probabilities have thus varied . There is, however, no reason to leave matters on a purely subjective basis. Using an assumption about the character of invalid voting which will be defensible in many cases, the relevant probabilities can be readily computed. Source: Mathematical Probability in Election Challenges via JSTOR.org [PDF]

Let's assume for a moment, actually the rest of this article, that Minnesota has a provision similar to that of New York which provides for a new election in the event of prominent voting irregularities. The Coleman campaign referenced the ruling established in Santucci v. Power yesterday in which "there were 101 suspect or invalid votes," and this quantity, with respect to other factors, contributed to the Court's decision to affirm the order for a new election. The definition of "suspect" and "invalid" remains somewhat unclear in this context, so let's just assume that the sum of all votes, either properly cast and not counted or improperly cast and counted, constitute the aforementioned definition of "suspect or invalid votes." Please note that this is likely not a valid legal definition, but this assumption will eventually allow me to make a mathematical point. Let's proceed with the math: The variable d represents the margin by which the current leader, currently leads; s is the number of votes cast for the second place candidate and k is the number of invalid or suspect votes. A complete derivation of the above formula is available in the appendix of the paper. The output of this function produces the probability of overturning the election result given the inputs, d, s and k. Another formula is also presented in the appendix that allows for separate computations on the precinct level; I may get ambitious and produce additional calculations for the 1,391 potentially double counted ballots at a later date. For the purposes of this article, the formula above will be used. Let's do a sample calculation using the values defined within the image: You'll notice that Coleman has less than a 1% change of overturning the election outcome if the already generous allotment of the 6,653 invalid votes are actually deemed to be invalid/illegal/suspect/etc. While this number seems exorbitantly low, the New York case of Lowenstein v. Larkin [40 App. Div. 2d 604, 335 N.Y.S.2d 799 (2d Dep't 1972)] in 1972 contained a probability of overturning that was basically zero (8E-85). The court however, still ordered a new election, although its widely accepted that the judges within this case possessed no intuitive probability skills and as such, they totally blew the ruling. While we've just illustrated that the <1% overturning probability is not a death sentence, he would need a little help in the form of a judicial blunder in order to receive a new election under out assumption of 6,653 invalid votes. In order to obtain a legitimate overturning ratio, Coleman must increase the number of invalid votes, but that's easier said than done as the graph below illustrates; please note that the x-axis uses a logarithmic scale: Here's the big conclusion and it's littered with ifs: If Minnesota Statute provided for a new election in the face of voting irregularities, Coleman would have less than a 1% chance of overturning the current result. If Coleman could somehow double the number of invalid votes, his overturning percentage would only reach 5% which is still too low for an informed court capable of ordering a new election, to actually order a new election. Using the principles from the 1973 paper, I think its fair to conclude that Coleman needs a massive anomaly, of one form or another, to emerge from this election contest with the lead, which is improbable but not impossible. Update [5:08 PM CT 3/6/2009]: I used a mathematically incorrect equation to determine the probability of overturning. The resulting correction did not materially affect the conclusion of the article; the probability dropped from about .9% to about .3%. One could however argue, as a commenter did below, that the conclusion is not particularly beneficial because the applied principles do not reflect the actual situation given the varying demographics of an entire state. I've since written a follow-up in which I re-calculated the overturning probability using county and precinct level data from various lists provided through the litigation process.

Six New Court Filings, An Overview

3/3/2009 10:14:16 PM CT

Tuesday brought the release of six new court filings, all of which were originally filled on Monday; the day Coleman "provisionally" rested his case. In "provisionally" resting, Coleman sought to establish a degree of leniency that would allow for the presentation of additional evidence. The Election Contest Court issued this order, in its entirety:

The above-entitled matter came before the Court upon Contestants' request to submit into evidence affidavits and declarations of individual voters as part of Contestants' offer of proof, The Court makes the following: ORDER 1. Contestants' request is DENIED. 2. The Court granted Contestants leave to delay the time to rest their case until March 4, 2009 at 12:00 p.m, That delay was granted for the purpose of allowing Contestants to serve subpoenas upon county and municipal election officials requesting certifications pursuant to Rule 803(10) of the Minnesota Rules of Evidence as described in the Court's Order of February 26,2009 in response to Contestants' motion in limine. The Court did not grant Contestants leave to submit affidavits or declarations of individual voters, The Court reaffirms its earlier finding that Contestants are afforded additional time only for the limited purpose of obtaining certifications in accordance with the Court's Order of February 26, 2009. Dated this 2nd day of March, 2009. Source: Order on Contestants Request to Submit Voter Affidavits via MNCourts.gov [PDF]

While the Coleman campaign was not granted permission to enter new evidence on any voter, they will be allowed to enter evidence pertaining to the yet to be searched absentee ballots; as was commissioned on February 26th by the ECC. While the Coleman campaign didn't get everything they wanted, they walked away with a partial victory. The Coleman campaign then moved to remedy the double counting issue; their memorandum follows:

PLEASE TAKE NOTICE THAT at a time set by the Court at its earliest convenience Contestants will seek a ruling on this motion to remedy the double counting of votes for the U.S. Senate seat on certain ballots that occurred during the recount. This Motion will be based on the accompanying memorandum and all the files, records and proceedings herein. Dated: March 2, 2009 Source: Notice of Motion and Motion for Order Declaring Recount Rule 9 Invalid as a Matter of Law via MNCourts.gov [PDF]

Their motion is pretty vague, but a look into their accompanying memorandum reveals their intentions. I've excerpted some pertinent passages from the seven page memorandum below:

INTRODUCTION The Secretary of State's Office created Rule 9 as a means of ensuring that the parties would have access to the original ballot, rather than the duplicate, because the original ballot was the best evidence of the voter's intent during the recount.' Representatives of the Coleman for Senate campaign agreed to Rule 9 under the mistaken assumption that Minnesota precinct judges would precisely follow the requirements of Minn. Stat. § 206.86, subd. 5, as well as training received by such judges from the Minnesota Secretary of State Election Division, and properly label all originals and duplicates. Unfortunately, it is now clear that in several precincts throughout the state of Minnesota, including numerous precincts in Minneapolis, the election judges inadvertently failed to mark all of the duplicated ballots, thereby making it impossible to retrieve them and leading to the double-counting of ballots during the Canvassing Board's recount. ... ARGUMENT I. MINNESOTA LAW SETS FORTH SPECIFIC PROCEDURES FOR THE DUPLICATION OF DAMAGED BALLOTS. Minnesota law requires the accurate creation of duplicate ballots in circumstances in which the original ballot is unable to be read by the tabulation machines (such as tom and damaged ballots and UOCAVA/overseas ballots). Minnesota law also clearly requires that only the duplicate be counted, while preserving (but not counting) original ballots. Minn. Stat. § 206.86, entitled "Counting Electronic Voting System Results," provides the procedure for the election-night counting of votes where a precinct uses an electronic voting system. ... II. MINNESOTA LAW CREATES A PRESUMPTION THAT DUPLICATE BALLOTS WERE MADE AND COUNTED BY VOTING MACHINES ON ELECTION NIGHT. ... Additionally, the record in this matter contains the election day pre-registered voter sign-in rosters, same-day registration rosters and UOCAVA rosters, as well as machine tapes from election night, all of which evidence the number of persons actually voting on election night. See Exhibits C56-60, C86-90, C94-98, C102-105, C110-113, C117-120, C138-141, C146-149, C153-156 and C160-163. The record in this matter also evidences the number of ballots actually counted during the recount, which numbers were certified by the Minnesota State Canvassing Board. See Exhibit C603 (introduced during the testimony of Minnesota Elections Director Gary Poser). A comparison of these exhibits demonstrates that, in 10 Minneapolis precincts, the number of votes counted during the recount exceeded the number of persons actually casting ballots at those precincts on election night, as follows: [Note: The "VFA VOTERS PRESENT" column has been added, which uses data collated from the SOS website.]
                    VOTERS   RECOUNT  [VFA VOTERS]
PRECINCT            PRESENT  BALLOTS   [PRESENT]
Minneapolis W11-P8   2857     2873        2851
Minneapolis W12-P8   2923     2936        2922
Minneapolis W10-P2   2079     2087        2076
Minneapolis W11-P7   1996     2004        1995
Minneapolis W7-P7    1849     1865        1856
Minneapolis W9-P2    1712     1718        1712
Minneapolis W10-P4   1193     1197        1192
Minneapolis W2-P5    2102     2104        2100
Minneapolis W8-P10   2214     2217        2215
Minneapolis W13-P1   1916     1921        1921
Where there are more ballots counted in the recount than voters who cast ballots on election day, such excess ballots are illegal and, therefore, cannot be certified by this Court to constitute legally cast ballots. See Johnson v. Tanka, 154 N.W.2d 185, 187 (Minn. 1967) (noting that where there are more ballots than voters who voted on election day, the votes cast over the number of voters "cannot be said to be legal."). "The outcome of an election should rest upon ballots received according to law and should not be determined by illegal votes." Id. III. THE PROCESS UNDER RULE 9 FOR COUNTING ORIGINAL BALLOTS WHEN THE NUMBER OF ORIGINAL AND DUPLICATE BALLOTS DOES NOT MATCH DID NOT COMPLY WITH MINNESOTA LAW. ... When the campaigns agreed to Rule 9, they did so with the understanding that the original ballot would be the best evidence of intent of the voter under Minn. Stat. § 204C.22 and the presumption that local election officials had created duplicate ballots and properly marked all duplicate and original ballots, as required by Minnesota law. Neither their agreement nor Rule 9 can prevent this Court from applying Minnesota law in the face of clear evidence that Minnesota law was not uniformly followed in the correct marking of duplicate ballots. First and foremost, it should be noted that Rule 9, on its face, does not mandate that originals for which no marked duplicates were found during the recount should be counted and included in the recount totals, The language relates to "sorting" and not "counting." Thus, Rule 9 complements Minnesota law by enabling a comparison (via "sorting") of the marked original ballots (found in the folder containing originals from which duplicates were made) to the corresponding marked and numbered duplicates. CONCLUSION For the reasons set forth above, Contestants respectfully request that the Court issue an order (a) declaring Rule 9 as applied during the recount in precincts in which the number of originals exceeded the number of marked duplicates to be invalid as a matter of law and (b) directing that pursuant to Minn. Stat. § 206.86, subd. 5, all ballots in those precincts which were challenged for the lack of a corresponding duplicate shall not be counted in determining which party received the highest number of legally cast votes. For the Minneapolis precincts at issue this simply requires that the double-counted votes be subtracted from the vote total. For the remaining precincts at issue, an inspection should be ordered or the Court should revert to the election night vote totals. Dated: March 2, 2009 Source: Memorandum in Support of Motion for an Order Declaring Recount Rule 9 Invalid as a Matter of Law via MNCourts.gov [PDF]

The basis of Coleman's argument seems to rest upon the improper application of Rule 9 [pg 7] as in pertains other Minnesota statues. In seeking this proof, they reference a number of presented Exhibits, Minnesota Statutes and a few other applicable court decisions. The Coleman campaign has requested that every voter-to-votes anomaly, involving unmarked duplicates, be invalidated; in making this request, they have placed the burden of proof upon the court and local election officials. Without presenting substantive evidence for each and every scenario, the Coleman campaign's request will likely fall on deaf ears. Using the voter-to-vote paradigm, there are 357 precincts in which there were more votes cast than eligible voters. If the Coleman campaign were serious about correcting the double counting errors, wouldn't it make sense to present evidence representing a more equitable set of precincts, rather than a select few from Hennepin County. It's also worth mentioning that the voter totals presented in the proceedings memorandum do not match those same totals provided by the Secretary of State's website. There are two possible explanation for this discrepancy, either (a) the data before December 9th (when I accessed the page) was different, or (b) the Coleman campaign failed to collate the proper data. You can make your own determination, you have all the information necessary. The next document is blatant but without a lot of context, go ahead and read the order first, then I'll fill in the blanks:

The above-captioned matter came before the Court, on February March 2, 2009, pursuant to Contestants' request to bring a motion to reconsider the Court's January 23, 2009 Order. Based upon the contents of the file, the Court makes the following: ORDER 1. Respondent's request to bring a motion to reconsider the Court's January 23, 2009, Order is DENIED. Dated: 3/2/09 Source: Order Respondents Request to Bring a Motion to Reconsider the Court 012309 Order is DENIED-Judges Hayden/Marben/Reilly via MNCourts.gov [PDF]

The referenced order pertains to Coleman's request to have ballots and other election materials available to the court. I wrote a fairly lengthy analysis on Coleman's request and the aforementioned order that the above order references. Coleman requested, before the trial even started, that 586 votes be inspected for potential double counting errors. The ballots were not referenced by name, but the county was indicated. The Coleman campaign is essentially asking the court to reconsider his prior request, in which he asked for these 586 to be made available for further inspection by the court. In the end, the ECC stood by their previous decision. The next document deals with the sanctioned levee against Coleman's representation for the botched disclosure of evidence in relation to Pamela Howell's testimony. The motion was originally put forth by the Franken campaign and requested that Pamella Howell's testimony be re-stricken from the record. A few selected excepts from the latest order are presented below:

The above-entitled matter came before the Court upon Contestee's Motion to Strike. Counsel noted their appearances on the record. The Court having heard and read the arguments of counsel, and the files, records, and proceedings herein, makes the following: ORDER 1. Contestee's Motion to Strike is DENIED. 2. Contestants are hereby ORDERED to pay costs in the amount of $7,500 pursuant to Rule 37.02 of the Minnesota Rules of Civil Procedure, payable to the Court within three (3) days of this Order. 3. The Court's Memorandum, filed herewith, is incorporated herein. 4. Any other relief not specifically ordered herein is DENIED. Dated this 2nd day of March, 2009. MEMORANDUM On February 25,2009, Contestants called Minneapolis election judge Pamela Howell to testify on Contestants' claim that certain ballots were counted twice during the recount due to such ballots not having been marked as "duplicates." (See Notice I2(a).) During cross-examination, Contestee elicited testimony from Howell that she had provided a document to Contestants' counsel that had not been disclosed to Contestee during discovery. Contestee moved to strike Howell's testimony. Ruling from the bench, the Court excused Howell and agreed that her testimony should be stricken. On February 26,2009, the Court reconsidered its ruling of February 25,2009, and vacated its order to strike Howell's testimony based on a finding that Contestants' failure to disclose Howell's statement was inadvertent and not in bad faith and that Contestee would not be substantially prejudiced by allowing Howell to testify, (Order February 26, 2009.) Howell was re-called to the witness stand on February 27,2009 and her testimony reinstated. On cross-examination, Howell began testifying about email communications between herself and Contestants' counsel. Howell's statement was specifically referenced in emails dated January 6,2009 and January 28,2009. Contestee renewed his motion to strike Howell's testimony and further moved to strike the underlying claim to which her testimony relates. ... In lieu of striking the witness's testimony or the underlying claim, the Court hereby imposes upon Contestants' counsel the obligation to pay the court costs incurred over the three trial days during which the Court addressed the issue of Howell's testimony. Contestants had an ongoing duty to abide by the discovery roles, as the Court has discussed both on the record and in its previous orders. (Order February 26,2009). Contestants' counsel were not "substantially justified" in withholding Howell's statement or the emails referencing the same and the award of expenses is not "unjust" under these circumstances. See Minn. R. Civ. P. 37.02. Due to the seriousness of the violation, the Court imposes costs associated with the delay caused by this non-disclosure, including the expenditures for personnel, lodging, mileage, parking, per diem meals, building security, space/rent, and other expenses, for a total fine of $7,500, payable to the Court.2 In the event this sanction fails to deter future conduct on the part of Contestants' counsel, the Court will not hesitate to impose harsher sanctions, up to and including dismissal. Source: Order on Contestees Motion to Strike via MNCourts.gov [PDF]

Basically the Coleman campaign was fined $7,500 for their failure to disclose proper information and Franken's motion was denied. Ms. Howell's testimony will still factor into the ECC's decision. The next filing is actually a letter written to the Election Contest Tribunal by Coleman attorney James Langdon:

Re: In the Matter of the Contest of General Election held on November 4,2008, for the purpose of electing a United States Senator from the State of Minnesota Cullen Sheehan and Norm Coleman v. Al Franken Second Judicial District Case No. 62-CV-09-56 Dear Judges Hayden, Marben and Reilly: I write to bring several authorities from other jurisdictions regarding potential remedies in election contests to the Court's attention. As I noted in my February 27, 2009 letter, a substantial number of cases from other jurisdictions apply proportionate reduction, on a precinct by precinct basis, as a remedy when a party has proven the existence of illegal votes. The Court may wish to review, among other cases, Hammond v. Hickel, 588 P.2d 256 (Alaska 1978); Huggins v. Superior Court, 163 Ariz. 348 (1990); Singleterry v. Kelly, 242 Cal. App.2d 611 (1966); Hileman v, McGinness, 316 III. App.3d 868 (2000); and Briggs v. Ghrist, 28 S.D. 562 (1912), for discussion of that remedy and the impossibility of adequately determining for which party an illegal vote was cast. Other cases are discussed at 26 Am. Jur.2d Elections § 357. 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 small: Marks v. Stinson, 19 F.3d 873 (3d Cir. 1994); Griffin v. Burns, 570 F.2d 1065 (1st Cir. 1978); Hardeman v, Thomas, 208 Cal.App.3d 153 (1989); Mead v. Sheffield, 601 S.E.2d 699 (Ga. 2004); Akizaki v. Fang, 461 P.2d 221 (Ha. 1969); Adkins v. Huckabay, 755 So.2d 206 (La. 2000); McCavitt v. Registrars of Voters of Brockton, 434 N.E.2d 620 (Mass. 1982); and Ippolito v. Power, 241 N.E.2d 232 (N.Y. 1968). Dated: March 2, 2009 Source: Letter to Judges from James Langdon dated 3/2/09 Regarding Potential Remedies via MNCourts.gov [PDF]

Within the letter Mr. Langdon attempts to establish that the margin separating the candidates is significantly small enough to render the entire election invalid based upon the number of illegally counted ballots. I looked through a fair number of the referenced court decisions and it appears as though their is precedent for invaliding an election, although nothing on the same level as a US Senate election. The most interesting case I found was Santucci v. Power [25 N.Y.2d 897, 252 N.E.2d 128, 304 N.Y.S.2d 593 (1969).] in which a New York court affirmed an order directing a new election on the basis of 640 irregularities, with a margin of 95 votes. In researching these court document I stumbled upon a few mathematical models for measuring election closeness; I've got a write up planned, for later this week, to fully illustrate these models as they relate to the Minnesota Senate Contest.

Searching Absentees for Registration

3/1/2009 3:24:48 AM CT

The past week of litigation proceedings produced very little new information, but a few items of note did occur that I have not previously covered. To begin, an additional group of 30 voters has filled a petition with the Minnesota Supreme Court to order that their votes cast on November 4th be counted. The majority of these voters reside in Dakota, Hennepin and Ramsey Counties, in about equal portions; this leaves six voters who reside in other counties. This group of 30 voters is represented by Charles Nauen, the same lawyer representing the other group of 61 petitioners. The second item of note involves the testimony of Pamella Howell, a Republican Election Judge from Minneapolis Ward 12, Precinct 8 within Hennepin County. Al Franken won the precinct in question by about 46%, netting 1,947 of the 2,936 votes cast. Ms. Howell was called to the stand by the Coleman campaign to discuss the 14 vote discrepancy between the total number of voters and the recorded number of votes. During her testimony, the judges struck Ms. Howell's testimony after it was discovered that the Coleman campaign had not shared pertinent information with the Franken campaign. The court later vacated their order, after the Coleman campaign requested a reconsideration. The liberal leaning Talking Point Memo declared that the original striking order "unambiguously damaged" Coleman's double counting argument; how they arrived at this assertion remains blatantly unclear. There are 1,391 votes meeting the Coleman campaign's definition of double counting, and just 14 fall within Ms. Howell's jurisdiction. The fact that a single election judge's testimony, covering about 1% of Coleman's claim, was ruled to have been semi-improperly conducted does not dissuade from the double counting issue in any way shape or form. There are still 356 other potentially anomalous precincts meriting consideration by the Coleman campaign. The Coleman campaign is playing the expectations game, and they may have just won round one based upon TPM's original assertion. If the striking of Ms. Howell's testimony was a big deal, then the vacation must therefore be an equally big deal. Because of the added drama surrounding Ms. Howell's testimony, the information she provide[s|d], will be subjected to a higher level of inspection. Unfortunately for TPM, their over exaggeration backfired, as Ms. Howell's story turns out to be true. Had TPM simply reported the news, instead of inferring their hopes/opinions, the talking point could have been different. It is said that realism has a strong liberal bias, so why embellish the story? Now onto the actual news; on Thursday, the Election Contest Court commissioned a search for registration cards within sealed absentee ballots. Their entire order is presented below:

In order to expedite proceedings in this action, county or local election officials ("officials"), who have custody of rejected absentee ballots submitted for the November 4,2008 general election are hereby directed to complete the following procedure no later than 4:00 p.m. Wednesday, March 4, 2009: 1. The officials shall segregate the rejected absentee ballots listed on the attached list. Once segregated, the officials shall open each ballot secrecy envelope containing the absentee ballot of each identified voter to determine whether the envelope contains a voter registration card or application ("registration''). In doing so, the officials, to the extent possible, shall refrain from looking at the ballot itself or observing any markings thereon and shall conduct the review so as to maintain the security of the ballots and to preserve ballot secrecy. 2. If no registration is found, the officials shall reseal the ballot envelope using tape or sticker over the opening and reinsert the ballot secrecy envelope back into the absentee ballot return envelope. 3. If a registration is found within the ballot secrecy envelope, the officials shall remove it, determine whether it is complete, make a copy of the registration, and return it to the ballot secrecy envelope, which shall be resealed. The ballot secrecy envelope shall then be placed back inside the absentee ballot return envelope. If the registration is deficient, the officials shall note on the outside of the absentee ballot return envelope the specific nature of the deficiency. The notations shall be dated and include the name of the officials making the notations which shall be made on the side of the envelope that does not include the voter's information. 4. The envelopes shall be sorted into three groups as follows:
a. Envelopes containing completed registrations.
b. Envelopes containing deficient registrations.
c. Envelopes containing no registrations. 5. For each of the groups, the officials shall prepare a separate list that includes the name of the county or municipality, the precinct and the name of the voter. The list of envelopes containing incomplete or deficient registrations shall specify the deficiency found with respect to each envelope. 6. The officials shall forward electronically the lists and the copy of each registration found in the envelopes in groups referenced in paragraphs 5 a, and b. of this order to Jim Gelbmann, Office of the Secretary of State at Jim.Gelbmann@state.mn.us. If a particular office of an official lacks the capability to forward the information electronically, the official shall contact Jim Gelbmann at the Office of the Secretary of State, (651) 201-1344, for alternative instructions concerning transmittal of the lists and copies to the Court. 8. All of the opened and resealed envelopes shall be securely maintained in their separate groups to facilitate transportation to a central location for review, if the Court should so order. 9. The Secretary of State 'shall immediately forward this Order electronically to affected county and local election officials. 10. Neither party shall have a representative present at the counties during this process. 11. The parties consent to this procedure by their signatures on this order. Dated: 2/26/09 Source: Order for Opening Secrecy Envelopes via MNCourts.gov [PDF]

I've parsed through the attached list of 1,526 unique voters, and produced the following documents to allow for a more efficient dissemination of the information contained therein:

Court Filing: PDF, 757 KB
Voter List: CSV, 42 KB
Ballots by County: CSV, 2 KB
Extrapolations: PDF, 144 KB I've further condensed the above information into the table below, using the assumption that each vote will eventually be counted:

                       Identified        Extrapolation
                         Voters       Coleman      Franken
Total                     1526         634.78      638.79
    Coleman Counties       896         428.86      311.98
    Franken Counties       630         205.93      326.82

While the list contains more ballots from counties/municipalities that Coleman won, Franken is still expected to gain about 4 more votes under the previous assumption. A completely accurate projection is however impossible, because, like everything else during the recount, the only way to know for certain is to count, or in this case sort. We should know more about this list on Wednesday, when the counties/municipalities are required to conclude their court ordered sorting.

Court Filling Dump III

3/1/2009 1:57:42 AM CT

I've excerpted what I believe to be representative portions of each court document released on Friday. I'll eventually return to this post and provide context for each filing.

INTRODUCTION Contestants do not support a remedy that would disenfranchise Minnesota voters whose ballots already have been counted. We would prefer to respond to Petitioners' renewed motion for summary judgment as we did the first such motion: let these ballots be counted so long as all similarly situated ballots are counted as well. The Court's rulings, however, dictate otherwise. Moreover, subsequent events have shown that Petitioners' declarations and affidavits are not always trustworthy; nor are the registration records used to support them. As a result, Contestants must oppose Petitioners' motion. Petitioners' motion should be denied on two grounds. First, as to several of the ballots, the proffered evidence either demonstrates that they cannot meet the Court's standard for a legally cast vote or the proffered evidence is incomplete. These voters have not met their burden ofproof. Second, as to the remainder of the ballots, the cloud cast by the subsequent revelation that Ms. Gorski's affidavit (which appears to have been obtained by the same persons who obtained these Petitioners' affidavits and declarations) was false, together with Contestee's stance on the necessity of having voters testify so as to be subject to cross-examination, augers in favor of leaving their claims to be resolved at trial. ARGUMENT Summary judgment is a blunt instrument. It should be used only when the moving party has satisfied the Court that there is no genuine issue of material fact and judgment should be granted in his or her favor. Minn. R. Civ. P. 56.03; Anderson v. State Dep't ofNatural Res., 693 N.W.2d 181,186 (Minn. 2005). All facts must be viewed in the light most favorable to the non-moving party. State Farm Fire & Casualty v. Aquila Inc., 718 N.W.2d 879, 883 (Minn. 2006). Here, that means the Court must cast a wary eye on self-serving declarations and must scrutinize the documentary evidence; if it is not clear that the statutory standard has been met, summary judgment should be denied. ... CONCLUSION For all of the foregoing reasons, Contestants respectfully request this Court deny Petitioners' motion. Dated: February 26, 2009 Source: Contestants Opposition to Renewed Motion for Summary Judgment via MNCourts.gov [PDF]

On January 22, 2009, Norm Coleman, Intervenor-Respondent in the above-captioned Petition filed with the Minnesota Supreme Court, filed a response to Petitioners' motion for summary judgment stating that he agreed that Petitioners' absentee ballots should be counted. Contestants' Memorandum of Law in Response to Petitioners' Motion for Summary Judgment, January 22, 2009, at 1. Now, in an extraordinary reversal, Coleman asks this Court to vacate its February 10, 2009, Order granting summary judgment in favor of 24 petitioners. Coleman's motion is based upon a selective review of the evidence, a desperate attempt to find inconsistencies where none exist, and unfounded speculation. I. ARGUMENT A. Coleman is not Entitled to Relief from the February 10 Order as it Relates to the Eight Ballots Identified in Contestants' Memorandum of Law Coleman asserts that he is entitled to relief from this Court's February 10 Order because eight ballots which were ordered to be opened and counted allegedly "cannot be squared with the Court's subsequent ruling on February 13,2009...." Contestants' Memorandum at 3. In order to obtain relief from a judgment, a party must demonstrate: (l) a reasonable case on the merits; (2) reasonable excuse for failure to act; (3) the moving party acted with due diligence after notice of entry ofjudgment; and (4) no substantial prejudice will result to the opposing party if the motion is granted. Reid v. Strodtman, 631 N.W.2d 414, 419 (citing Finden v. Klass, 128 N.W.2d 748, 750 (Minn. 1964)). ... B. There is no Basis for Vacating the Entire February 10 Order. Notwithstanding his initial support of Petitioners' motion for summary judgment, Coleman asserts that he is entitled to relief from this Court's February 10 Order because he has changed his mind and now believes that "the ability to cross examine the affiants or absentee voters has become critical." This is not a sufficient basis for vacating ajudgment. ... II. CONCLUSION Coleman has failed to establish that he is entitled to relief from the Court's February 10 Order granting summary judgment in favor of 24 petitioners. Accordingly, Petitioners request this Court deny Coleman's Rule 60.02 Motion to Vacate. Dated: February 26, 2009 Source: Petitioners Memorandum of Law Opposing Contestants Rule 60.02 Motion to Vacate Judgment via MNCourts.gov [PDF]

I. INTRODUCTION The Court has now heard oral argument from both parties on the pending motion in limine to exclude evidence relating to certain emailed "certifications" sought by Contestants. During the course of that argument, Contestants presented no new arguments or theories ofa dmissibility that would save the "certifications" at issue. Contestee respectfully submits that, on the record before the Court, the Court should grant the motion for the reasons set forth in the opening brief and at oral argument. As invited by the Court, Contestee Al Franken with this memorandum responds to the authorities relied on by Contestant during oral argument. II. ARGUMENT AND AUTHORITY At oral argument, Contestants expressly abandoned any reliance on Rule 803(6), the business records exception. They "primarily" rely upon Rule 803(8), and counsel also mentioned, as suggested by the Court, Rule 803(10).1 Neither of these rules provide a vehicle for the admission of the "certifications" in question, even assuming that Rule 902's self-authentication provisions applied. ... III. CONCLUSION For these reasons, Contestee respectfully submits its that the requested "certifications" be excluded in favor of actual testimony of persons with knowledge, copies of the original source materials, and other relevant evidence, all subject to cross examination on the public record before this Court, on the record, and before the public. Dated: February 25, 2009 Source: Contestees Reply in Support of his Motion in Limine to Exclude County Data Practices Act Certifications via MNCourts.gov [PDF]

INTRODUCTION Over the course ofthe last five weeks, this Court has heard testimony from a variety of state, county and municipal election officials from across the state, from the smallest of counties to the most senior election officials, pored over thousands of documents, and heard from citizens who have appeared pursuant to subpoenas, all in an effort to fulfill its statutory responsibilities to declare which candidate for the United States Senate received the "highest number of votes" in the November 4,2008, general election. Appearing before this Court has been., it is fair to say, an inconvenient, but critically important, duty ofthe election officials charged with the responsibility for conducting this election (just as conducting the recount itself was an inconvenient but critically important duty). Those officials, however, have appeared without complaint, often in inclement weather, from far flung locations, and awaited the call to provide testimony and evidence before this Court. In anticipation of the commencement of Contestee's case early next week, Contestee issued several subpoenas seeking testimony from election officials from several large counties, including Hennepin County, Ramsey County, and St. Louis County, and from the City of Duluth. In each instance, Contestee tendered to the witness the appropriate witness fee and mileage allowance required by statute. Jeffrey Cox, the City Clerk for the City of Duluth, objected to the subpoena seeking, in addition to the statutory witness fee and mileage, advance payment of an hourly charge of $60 per hour for his time, to be charged on a 24-hour a day basis, with a minimum $1,000 advance payment. When Contestee refused to make these additional payments, Cox filed the motion at bar seeking to quash the subpoena unless and until Contestee make advance payments in excess of $1,100. The motion is without foundation and Contestee respectfully requests that the Court deny the motion. Minnesota law does not require payment of additional sums, over and above the statutory fees, to a public election official who is required to provide testimony in a statutory election contest, much less hourly fees charged on a 24-hour basis. Appearing before this Court imposes no greater burden on Mr. Cox than the burden imposed on auditors from Crow Wing, Lyon, Becker, or Beltrami counties, all of whom appeared in this Court without complaint, as did the highest ranking election officials in the state. The motion, Contestee respectfully submits, should be denied. BACKGROUND After learning on Monday, February 23,2009, that Contestants were planning to rest their case as early as Wednesday, Contestee's counsel prepared trial subpoenas for election officials for the City of Duluth, St. Louis County, Hennepin County, and Ramsey County to ensure that witnesses would be available if Contestee's case began Thursday, February 26, 2009. ... DISCUSSION As a general rule, of course, every citizen owes a duty to appear to provide relevant testimony in court proceedings upon the issuance and service of an appropriate subpoena. The Legislature has fixed a statutory fee for witnesses, and a mileage rate for travel costs: Minn. Stat. § 357.22 provides that a witnesses required to provide testimony at a trial shall be paid a fee of $20 for each day and 28 cents per mile for travel to and from the court. These statutory fees were tendered to Mr. Cox when the subpoena was personally served upon him. ... In this case, Mr. Cox is a salaried employee who will not be out of pocket for any sums incurred in having to testify in this contest action. While a certain amount of inconvenience and disruption is involved, that is part of the cost of this type of proceeding, and is a cost that all of the other public officials who have testified in this case have borne, from far flung county officials to the highest ranking election officials. The burden on Mr. Cox is no more and no less. His motion to quash should be denied. Dated: February 26, 2009 Source: Contestees Memorandum in Response to City of Duluth Motion to Quash Subpoena via MNCourts.gov [PDF]