MN Andy said...Pearce, you should take a look at the MN Senate Race. Today arguments were heard in front of the MN Supreme Court. http://www.twincities.com/ci_12494611?nclick_check=1 This is a prime example of activist judges doing what they do. Sen. Coleman has a strong grounds for appeal to the US Supreme Court if MN doesn't get it right. Equal Protection violations happened all over during this race. If this gets to the Supreme Court there is precedent for the case that Coleman is making. Also, there is the Equal Protection Clause in the Constitution, but I doubt many Dems have read that little piece of paper lately. I just want to make sure you are keeping up on this race. America doesn't need Al Franken being the 60th vote in the Senate.
mikeyr2 said...Republicans will never make a good case against "judicial activism" given that, amazingly, they themselves morph into 'judicial activists' when it suits their purposes. The full-court press to overturn Roe v. Wade precedent is but one example. Another glaring example is the highly activist Bush v. Gore decision, decided far from impartially, but on party lines.
On this basis, it is ironic that MN Andy rails against the 'activist' judges of Minnesota when the "precedent for the case Coleman is making" is in fact one of the most activist decisions of all time (Bush v. Gore). In that opinion, furthermore, Rehnquist--realizing that his decision could never stand the test of time--specifically stated that it was NOT to be considered precedent. Minnesota and Florida are apples and oranges. Unlike Florida, the election laws of Minnesota governing recounts are fully clear, and they were fully followed. This is why the (as politically impartial as you can get) panel of one Democrat, one Republican, and one Independent judge voted unanimously in favor in Franken...and why the MN Supreme Court will do the same.
MN Andy said...mikeyr2: You say I am picking on Bush v. Gore for this. True, but you are not clear on what I am saying. There was more than one ruling in that case. I am referring to the 7-2 ruling the court made in order to provide equal protection of voters (you should look this ruling up...it clearly addresses the issues that Coleman is facing in MN). I do not see how that can be seen as activism. That is call standing up for the 14th amendment. You seem to be making bold statement about the case. I was able to sit through the entire process and it was not as fair as you may think. There are ballots that were cast that are not being counted because of election rules. Then in other cases, the same rules were not followed in different parts of the state, but those ballots are being counted. I do not think that equality is the name of the game here. This issues is clearly addressed in Bush v. Gore. There were two parts to that case. The counting of the ballots is what matters in the Coleman case. Since there is no time limit on this case, the 5-4 decision is irrelevant in MN.
You say "Unlike Florida, the election laws of Minnesota governing recounts are fully clear, and they were fully followed." You are wrong. The fight that is happening in MN is based on the absentee ballot rules. These rules were not followed. It is clear that they were not followed. Al Franken's lawyers have said that they were not followed. But, they also say that it's too late to do anything about it. There are thousands of voters who would have had their votes counted if they had lived in a different city. There are also thousands of voters who should not have had their votes counted. Election judges who were in charge of reviewing the ballots to determine if they followed the rules have testified that there were different standards followed than what the law says. This is why I argue that these judges are activists. They are allowing the election law to be broken. They are creating new standards for how elections will be handled. I would say that the 14th amendment has more to say here than just saying "oops it's too late to fix the problem."
The basic idea of one person one vote is not being upheld in these rulings. I don't think that MN election law can over rule anything that the Constitution says. Franken is benefiting from judges breaking the rules.
Michael Rosenberg said...For absentee ballots AND other ballots, Minnesota's laws are much clearer than Florida's about general procedure for which can be counted and which can be thrown out. In fact, the trial court affirmed this a few months ago when they ruled that the state-wide standards were completely clear.
I am aware of the 7-2 portion of Bush v. Gore, but even this was explicitly not intended to be taken as precedent. But even if you WERE to take this as precedent, that specific precedent covered a state recount...not the counting of illegal absentee ballots before a recount. Again though, Florida is not Minnesota, and the Minnesota trial court already found no evidence of systematic discrimination such that an Equal Protection claim could be valid.
Coleman was arguing, at least a few months ago, that because some absentee ballots were counted illegally in some parts of Minnesota, therefore, other ballots should be counted in the same illegal manner throughout Minnesota. If some jurisdiction had accidentally--and illegally-- counted the absentee ballots of teenagers and felons, Coleman would say that the way to remedy this would be to compound this illegality by counting the ballots of teenagers and felons anywhere else. The trial court didn't buy this argument, and I suspect the MN Supreme Court won't either.
Election problems happen all over the United States. But the errors in Minnesota's case were mistakes that simply don't rise to the level of malfeasance and systematic discrimination that are requisite for a legitimate Equal Protection claim. The real activists, in this case, are those who seek to so generously apply the claim as to subvert its real purpose...who want to Actively overturn the final decision of the Canvassing Board AND Trial Court--both of which, again, were truly about as impartial as these entities could get.
MN Andy said...I am not even going to respond to what you wrote Michael. You are only picking on bits and pieces of the case in MN. You are making arguments based on what I would assume are the media reports. You are wrong in what you are saying. I sat through every day of the canvass board meetings. I was there. I do not need some hack in DC telling me about MN election law. I have a feeling I know a little more about it than you. Read what I wrote. Laws were violated in this case. Democracy is not being served with the judges decisions. Sure they are ruling in the case, but that doesn't mean what they say is right. Just like what you just said. YOU ARE WRONG.
Michael Rosenberg said...I may not live in Minnesota, but I have followed the case and read the trial court's decision. (In my opinion,) there is no basis for an Equal Protection claim here, and no proof that errors changed the election's outcome. I was hoping we could be more civil, but I can understand your disappointment with court decisions that didn't, and probably won't, resolve in Norm Coleman's favor.
MN Andy said...Keep thinking you know what you are talking about. And I wouldn't have to be 'uncivil' if you presented your argument in a better manner. I wasn't looking to get into it with anyone. You just started talking about something you don't know anything about. I can't let a lie keep going. I do not think the trial court's decision is enough to base your claim. I think you are missing a good amount of information. If one person gets a vote counted that should not have been counted and another person doesn't get their vote counted based on the same situation, that is grounds for an equal protection claim. There are thousands of stories like this in MN. There were witnesses in the trial that made these claims. There were election judges who claimed that they allowed votes to count that were in violation of the election law. I think you should go back and look at more information before you tell me what you think. I think I am a little more informed than you about this.
Michael Rosenberg said...Given that my interpretation of both Equal Protection and Minnesota election law totally reflects that of an (informed) trial court and that of an (informed) State Supreme Court, I could just have easily--probably more easily--have argued that you, in fact, "don't know what you're talking about". But so far, I have avoided such ad hominems.
You say that "if one person gets a vote counted that should not have been counted and another person doesn't get their vote counted based on the same situation, that is grounds for an Equal Protection claim." Following this logic through, if just one felon in Minnesota mistakenly got his vote counted, and literally every other felon in the state--rightfully--did not, then there is grounds for an Equal Protection claim. If just one person has her vote eaten up by a machine that suddenly malfunctions, and all other votes are counted properly, then that too is grounds for an EP claim. Your interpretation of "equal protection under the law" is so generous and expansive that if you were to apply it impartially, you would find legitimate claims absolutely everywhere, and as a result, you would seek to nullify just about every election that has ever taken place in the United States.
It was a close race. A recount was overseen by a bipartisan panel--and Franken won. A bipartisan trial court affirmed the validity of the outcome. Now, even the Republicans on the Minnesota Supreme Court seem poised to do the same. Why? Because the Coleman camp has never been able to prove that a) any systematic discrimination or voter disenfranchisement was ever evident, or b) any of the alleged irregularities were enough to definitively sway the election outcome.
No election is perfect. Even if your claims were valid, they would hardly justify overturning the election results. In fact, the remedy you seek would be the greatest Judicial Activist decision of them all: have a Court invalidate an entire election that has already been legitimately recounted and certified on the basis of a hazy Equal Protection claim.
MN Andy said...The city of Minneapolis did not reject an absentee ballot due to an unregistered witness, when in fact there were unregistered witnesses. This was agreed upon by many different witnesses during the trial court which you seem to base all your understanding. Out of thousands of absentee ballots in the city, none were rejected for this claim, where as in Carver County, hundreds of ballots were rejected based on this LAW. Minneapolis election officials broke the law. In an election that is separated by such a close margin, this is not just a small issue.
Plus, I cannot help that you are easily offended. Don't get mad when I call you out for being wrong. I am not even going to get into the claims you are making about 'bipartisan.' That's something of its own.
What I want you to do is look up the absentee ballot rules for MN. Tell me the four steps that a ballot must follow to be valid. There have been countless times when ballots were rejected for no reason, and other times when they were not rejected because of a bad election judge. How many ballots were added during the trial? What makes these ballots any different than other ballots? The judges in the trial were picking and choosing ballots. In a race this close, that is not how it should be handled. Also, the trial court does not have the jurisdiction to remove ballots from the count. There is only on way to fix that, a new election. They are not in the position to call for the new election.
You are just mad that you are not right. Keep trying to prove me wrong. When you do, give real examples, not just ideas that everything was bipartisan and the judges said this and that. Had the judges been right, there would have been no appeal to higher court. You make a lot of wild claims about what the court has said and what they will do. Prove what you are saying. You have a limited scope of information you are pulling from. Look at all of the court documents that have been filed since November. When you do that, get back to me. You can't just look at a trial court ruling and say that that is the word of God. I bet you think Nanci Pelosi is telling the truth with the CIA memos. You seem that naive.
Michael Rosenberg said...It is interesting that you accuse me of making wild claims immediately after saying this: "Had the judges been right, there would have been no appeal to higher court."
I'm sorry, but anyone can file an appeal. Legitimate rulings get appealed every day. The existence of an appeal, quite clearly, does not prove the original ruling wrong.
Contrary to your belief, this is not about me. And actually, the burden of proof never rested with me. It rests with the plantiff seeking to overturn certified election results. Neither the Coleman camp in its briefs, nor you here on this blog, ever proved a scheme of systematic disenfranchisement, fraud, discrimination, or vote tampering. All you have shown are minor inconsistencies among jurisdictions in election procedure: the type that occurs inevitably in every state and every election, and the type that result from reasonable differences in the election systems among jurisdictions. You have no proof whatsoever that the election outcome would have been definitively reversed had your cherry-picked ballots been counted. During the recount, remember, when both parties managed to agree to count a certain group of absentee ballots that had been wrongly rejected, it just so happened that Franken's lead expanded beyond what it already was. When the court ordered more absentee votes counted, Franken's lead increased yet again. What makes you think his lead won't continue to increase?
You say "[adding ballots] is not how it should be handled," but this approach of picking and choosing ballots is precisely what your side has been advocating all along. Your side did (and still does) want certain ballots added, including those that I just mentioned that ultimately worked against you, as well as certain ballots removed.
You believe the lower court must have been wrong because, well, Norm Coleman filed an appeal. I believe the lower court was right because its decision has a sound basis in law. It's relatively clear cut: Equal Protection does not cover reasonable differences in jurisdictional procedure. Election officials in Minnesota did the best job they could given the resources available. There was no intent whatsoever to discriminate against voters. Perhaps most importantly, even if laws were unintentionally broken (which they were not), Coleman has not proven that the outcome of the election would be affected.
You seem to believe two imaginary things: One, that a perfect election is attainable. Two, that you are right--given that, after all, Coleman did appeal...and you were there.
MN Andy said...You still have not given reason for me accept what you are saying. Make a claim and support it. And me being present throughout this has given me more information than you have. I did not claim that that was the reason I was right. I used that as support for the claims that I was making, because I was present when information was presented. I have knowledge of what is going on. You do not know what you are saying. So prove what you claim.
And these ballots that "my side" wants added are not just random ballots. These are ballots that were rejected on election night because they didn't fit the standards. But, I guess letting thousands of ballots into the count that were in violation of the law is ok to you. I guess we don't need laws in this country. In a race that is so close, these ballots can make a difference. I'm not saying that these are Coleman votes. I am saying that these are votes that should be allowed. No one knows what these votes are. But, if others were counted, then these rejected ballots should be counted as well. This is where the Bush v Gore decision comes into play. If the law was broken, then break the law for everyone, not just a few voters. There needs to be a clear standard to follow when counting a ballot in an election. There were 87 standards that were used on election night. This was a fault to the election system in MN, which by the way was run by a Democrat. Since breaking the law is not an option, then the best result would be a re-vote. Make it clear what the law says, and stick to that law.
I like the fact that you are just assuming what I am saying. You said, "Election officials in Minnesota did the best job they could given the resources available. There was no intent whatsoever to discriminate against voters." Does that mean that this should all be over looked. Just because they did there best. Well, there best wasn't good enough. Had they done their job, there wouldn't be questions about absentee ballots. I want you to explain that statement to me as well. Since you do not live in MN, tell me how you feel they did. Since I know nothing about MN on election day. Tell me what you know that I do not know.
I find it interesting that you like assuming what I am saying. Is it because you don't like that someone called you out on this? I was not intending for this to be a back-and-forth, but you decided to open your mouth. I also like the idea that you keep thinking that this was all sound law. Explain that to me. I keep asking you to back up what you are saying, but you can't. You can say all you want that the law is being fallowed, but in order to make an actual argument about this, you need to support what you are saying. I have not seen you support your claims. A weak argument is all you have. Put a little effort into your claims. You do not know enough about this topic to be responding. So just give it up.
Michael Rosenberg said...Your responses have been almost entirely focused on personal attacks, not the law. Your being there is not support for the claims
you are making; and your merely saying "you have knowledge of what is going on" is not support for the claims you are making.
I hate being redundant, but you are making it necessary. The burden of proof to overturn the election results does NOT rest with me. It rests with you and Norm Coleman, period; and you have not proven your case. Again, Bush v. Gore does not come into play, because the decision itself says so. Just one line from that decision provides all the support I need: "The question before the Court is not whether local entities in the exercise of their expertise, may develop different systems for implementing decisions.'"
If you want to stop jurisdictions from exercising reasonable discretion in determining which absentee ballots to count, and if you want stricter standards for future elections, then I suggest you take this up with the Minnesota state legislature. But the courts will not overturn a certified election on the meager basis that the results MIGHT have been different if a Coleman-approved standard had been in place throughout the state. Ironically, too, while you say your side wants a clear standard, Coleman's preferred standard in his briefs is one of a hazy "substantial" compliance instead of strict compliance.
By the way, if you got your wish for a new election, Norm Coleman would be even more likely to lose now than he was back in November. For Coleman's own sake, you shouldn't even want a re-vote. So, I suggest that you and Coleman just give it up. Before long, anyhow, it looks like you will be forced to.
MN Andy said...I have supported my claims about the law. You on the other hand have not. I cant help that personal attacks are easier when dealing with someone like you. I cant help that you are not supporting your argument. Coleman has nothing to do with what you are saying. You made a claim...now back it up. How has the law been upheld in this case? I have asked you time and time again to explain this.How has the law been upheld when votes were allowed into the count that should not have been? What has the court done to protect voters? I will keep asking this question until you answer. You keep avoiding my question because you do not have an answer for me. The 14th Amendment trumps all of your arguments. Don't respond unless you have a real answer to my question.
Michael Rosenberg said...It is not illegal for different jurisdictions to implement their own election systems, and it is not illegal for jurisdictions to use their discretion in how they uphold MN election law. Minor irregularities and differences in election procedure do not equate to breaking of the law.
And again, even if the law were broken, as you believe, it cannot possibly justify breaking the law everywhere else in the state.
Besides, it is in inevitability that if you dig deep enough in any election anywhere in the world, you will find votes making it into the count that shouldn't have. It's a fact of life. Mistakes happen. Machines malfunction. Unless there is solid proof that those very votes swayed the election in and of themselves, the results stand.
MN Andy said...MN Election law (which you seem to know nothing about) has rules regarding how a ballot is to be counted. These rules were broke. That is a violation of MN Election law. I am not saying that someone should go to jail for this, but that there should be a clear understanding of the law. When there was a rule that was ignored by a city (Minneapolis) that is the largest in the state, that is a problem. The problem only becomes larger when the vote total is as close as it is currently. Are you saying that as long as you are not caught doing something wrong it is fine?
Plus you still are not answering my question.
Michael Rosenberg said...Yes, and it is true that some jurisdictions follow strict compliance and others follow substantial compliance.
Note: Substantial--NOT Strict--compliance is the exact standard that Coleman is advocating for in the briefs. By your own logic, Coleman is advocating breaking the law!
Oh, but I know more about Minnesota election law than you think, and here is what it says: for the 14th Amendment to be at all relevant in Minnesota, *within a given jurisdiction*, there be either a) an intentionally discriminatory standard for counting ballots, or b) a completely haphazard, arbitrary standard.
One different election judge may have used a slightly different approach than another, but what matters is that the approach of each was reasonably complaint and fairly applied. No evidence in Minnesota suggests anything happened otherwise.
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