When Legal Realism Attacks

Via Kos, Republicans arguing for expansive statutory interpretation and Dems for strict construction:

Coleman lawyer James Langdon said that the Franken team "would have you sit in a vacuum, strictly interpreting a statute[]" . . . The Franken camp argued the opposite -- that Minnesota laws are very specific about what kinds of ballots are to be counted . . . "The contestants [Coleman] talk a lot about what they wish the law might be, but not what the law is," said lead Franken lawyer Marc Elias. "And the law is what it is, and has strict requirements that must be adhered to."

Without knowing more, I must admit I prefer the Coleman argument, especially when it comes to counting votes. Beyond that, if a consistent standard is applied, does anyone doubt Franken will still win? I am not thrilled with people not actually parties to the dispute letting their concern for voters suddenly disappear. Franken should be arguing for consistent expansive standards imo. I find his reversal the more depressing. I already expect the worst from Republicans.

Speaking for me only

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    It seems to me (5.00 / 1) (#10)
    by Steve M on Fri Feb 13, 2009 at 10:20:15 AM EST
    that a lot of the individual cases are fairly extreme, like people who admit that the signature on the ballot isn't actually theirs.

    If someone comes into court and testifies "no, I had someone else my signature, but that ballot does reflect my vote and I'd like it to count," do we really think that is a plausible way to run an election?  I'm in favor of "count every vote," for obvious reasons, but is there any limit on that principle whatsoever?

    It's easy to excuse technical violations of the election rules, but when it comes to more serious violations there comes a point where it actually harms the legitimacy of the election to excuse those violations.

    Their equal protection argument (none / 0) (#12)
    by magster on Fri Feb 13, 2009 at 10:25:54 AM EST
    seems especially suspect to me, too ("because some votes were improperly counted, then all should be counted").  To ask a court to ignore the law in order to administer "equal protection" takes equal protection too far.

    Franken/Coleman (5.00 / 0) (#14)
    by Pat Johnson on Fri Feb 13, 2009 at 10:35:16 AM EST
    Then let the votes be counted.  If Franken is the winner, whether or not I like him makes no difference.  The outcome should at least ensure that it was reached correctly.   Coleman is an idiot, no doubt about it, but there needs to be transparency in an election or we may as well just do away with them altogether.

    Would you feel it was "fair" if the slim number of votes were in Coleman's favor rather than Franken's?   If there was "double counting" as has been alleged, then the voters of that state are owed an investigation and an answer.  

    This why progressives lose arguements (none / 0) (#16)
    by samtaylor2 on Fri Feb 13, 2009 at 11:04:02 AM EST
    You are too fair :)

    I disagree (none / 0) (#17)
    by Big Tent Democrat on Fri Feb 13, 2009 at 11:11:23 AM EST
    Progressives lose arguments because they do not fight for their principles.

    Minnesota Election Laws (5.00 / 1) (#18)
    by Amaliada on Fri Feb 13, 2009 at 01:39:30 PM EST
    Disclaimer:  I am a volunteer for the Overseas Vote Foundation, a non profit, non partisan organization that charges itself with assisting active duty military personnel, their spouses and dependents, and eligible American citizens living outside the United States with registering to vote and requesting an absentee ballot.  The Overseas Vote Foundation has worked closely with Mark Ritchie, the Secretary of State for Minnesota for several years.  I also worked with Mark Ritchie many years ago when I was a board member for the Environmental Grantmakers Association.

    I watched Mark Ritchie live on CSPAN talk about the Senate election in Minnesota and the subsequent recount at a meeting last week of the National Association of Secretaries of State.

    Mark was very clear, that Minnesota's election laws, many of which have been on the books for several decades, leave NO wiggle room about how to do a recount.  Mark also talked about getting advice from his colleagues, including Sam Reed, the secretary of state for Washington State which had a very close election in the governor's race in 2004.

    I suggest you watch it (its about 20 minutes) to get a better feel about what is going on.

    Franken is absolutely correct, in terms of how Minnesota has laid out the legislation and rules and while Coleman's wishes may be more egalitarian, they don't match the law.

    A wise man once told me, "pols are pols (none / 0) (#1)
    by tigercourse on Fri Feb 13, 2009 at 09:54:42 AM EST
    and they do what they do"

    Did you post this twice? (none / 0) (#2)
    by BarnBabe on Fri Feb 13, 2009 at 09:55:58 AM EST
    Or is my computer screwed up?

    posted twice (none / 0) (#3)
    by CST on Fri Feb 13, 2009 at 09:58:24 AM EST
    Always good (none / 0) (#6)
    by KeysDan on Fri Feb 13, 2009 at 10:03:09 AM EST
    to double check.

    LOL (none / 0) (#4)
    by SOS on Fri Feb 13, 2009 at 10:01:35 AM EST
    My guess is either the coffee didn't kick in or severe fatigue deficit.

    Or (none / 0) (#5)
    by SOS on Fri Feb 13, 2009 at 10:02:08 AM EST
    brain drain . . . .

    Franken/Coleman (none / 0) (#7)
    by Pat Johnson on Fri Feb 13, 2009 at 10:06:00 AM EST
    I agree.   It is difficult to take the high road if your candidate, or party for that matter, chooses to "win" based on Rovian principles.

    Count the damned votes and get it over with.  Neither candidate is a prize package to begin with so none of us are sitting here with bated breath expecting much more than lackluster performers each toadying to the party line.  

    But get the thing right for once.  Count the damned votes!

    Don't worry (none / 0) (#8)
    by SOS on Fri Feb 13, 2009 at 10:15:50 AM EST
    the Bureaucracy has everything under control.

    What color is your sky? (none / 0) (#9)
    by Repack Rider on Fri Feb 13, 2009 at 10:17:17 AM EST
    Neither candidate is a prize package to begin with so none of us are sitting here with bated breath expecting much more than lackluster performers each toadying to the party line.

    Are you joking?  There are only two candidates here, and the differences are stark.

    Coleman is a crook and an incompetent.  Franken has at least been successful in several endeavors, has shown his willingness to confront GOP liars in public (he called Billo a liar TO HIS FACE), and there is no evidence that someone else is buying his expensive suits for him.

    And with Franken in ... (5.00 / 2) (#11)
    by Robot Porter on Fri Feb 13, 2009 at 10:25:20 AM EST
    the Senate, we'll have at least one Senator who admits he's a comedian.



    According to the MST (none / 0) (#13)
    by jbindc on Fri Feb 13, 2009 at 10:32:03 AM EST
    The categories touch on a range of situations, such as when application or registration materials are left unsigned, when boxes are left unchecked on an envelope, or when voters are issued a ballot for the wrong precinct or vote in a precinct where they are not registered.

    Seems to me if a voter was issued a ballot for the wrong precinct, then that's not the voter's fault.  I don't know how many votes were talking about, but it doesn't seem like they are all extreme arguments.


    Yes (none / 0) (#15)
    by Steve M on Fri Feb 13, 2009 at 10:35:24 AM EST
    I recall reading about one case where a guy was in jail (still able to vote, apparently) and they sent him a ballot for the precinct where the jail was, not the precinct where he lives.  Well gosh, shame on him for not marching right down to the Secretary of State and demanding a new ballot.  But it's not clear to me that Franken is necessarily contesting each and every one of these situations - some of the issues are simply matters that weren't able to be properly considered, for whatever reason, at earlier stages of the recount.

    Coleman is hypocritical (none / 0) (#19)
    by Lora on Fri Feb 13, 2009 at 07:43:42 PM EST
    Coleman could care less about the voters.  Many of the same ballots he wants to count now, he rejected in the first go-round.

    From the Brad Blog: (emphasis mine)

    Coleman: Count the Felon's Vote!: By way of demonstrating just how hypocritical some of Coleman's arguments have been (including arguments to include many ballots that they'd previously argued to reject during the post-election hand-count phase), there was one rejected absentee ballot, that Coleman would now like counted, which came from a guy in jail. He was sent a ballot for the county he was serving time in, instead of his actual county of residence, so the ballot was rejected. And in either case, convicted felons aren't allowed to vote in MN. But Coleman wants it counted.

    in jail = felon? (none / 0) (#20)
    by txpublicdefender on Tue Feb 17, 2009 at 11:32:29 AM EST
    Since when does the fact that a guy was in jail mean that he is a convicted felon?