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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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]