Increase the Margin of Error: A review of former U.S. Senator Norm Coleman's (R-MN) opening brief before the Minnesota Supreme Court have convinced few legal and political observers that he will be successful in overturning the victory of Senator-elect Al Franken (DFL-MN). The problem is not with the lengthy legal arguments concerning violations of the Equal Protection and Due Process clauses of the U.S. Constitution. Coleman's team of attorneys presented a well reasoned and constitutionally sound argument. They clearly had the aid of keen and gifted legal scholars.
Their problems stem for a poor presentation before the three-judge panel that initially oversaw the recount trial. The errors made by Coleman's team of attorneys resulted in legal sanctions, monetary compensation to Franken, and boarded on malpractice. Coleman's legal team withheld evidence and improperly coached a witness in the middle of her testimony.
But more damaging, they failed to establish the factual basis necessary to win on appeal. In fact, they stipulated to facts which now undermine their arguments.
The main argument made in their brief is that since the trial court applied a stricter standard for counting thousands of disputed absentee ballots than was used on election day, two constitutional principles were violated. First is equal protection because similar ballots were counted differently. The second was due process because the court imposed different rules to count the ballots after the election was over.
The factual findings by the court, however, was that "The overwhelming weight of the evidence indicates that the November 4, 2008 election was conducted fairly, impartially, and accurately." That is not to say that it was perfect. "Although not ideal, errors occurs in every election," the court found. This is what D.C.'s Political Report has called the "Dirty Little Secret" of American politics. Elections, like opinion surveys, have a margin of error.
There are three types of errors that can occur: mathematical errors, errors of inclusion, and errors of omission. Theoretically, mathematical errors can be eliminated with sufficient counting and recounting of the ballots. Eventually every counting error should be discoverable. Errors of inclusion occur when those who are not eligible to participate are permitted to vote. Errors of omission occur when eligible voters are denied their Constitutional right to cast a ballot or have that ballot counted.
Coleman is arguing that because the court allowed errors of inclusion, they must now permit additional errors of inclusion. Because some absentee ballots which would not have passed a strict standard of review were included in the election night vote, the courts must now accept other rejected absentee ballots which were excluded because of technical violations.
It is a fallacious argument. If you allow one ineligible vote, you must allow all ineligible votes.
What makes matter worse is that Coleman's lawyers stipulated to the inclusion of the absentee ballots they now challenge as the basis for their suit. They were asked whether they were going to challenge the findings of the state Canvassing Board as to the inclusion of some absentee ballots and agreed to stipulate that the ballots were valid. They now challenge the inclusion of those same ballots and use them for the basis of declaring the election hopelessly flawed.
But that was not their burden of proof. Coleman needed to prove more than that errors occurred. He had to prove that but for the errors, Coleman would have been declared the winner. The margin of victory being less than the margin of error is insufficient grounds to invalidate election results. On the other hand, if it can be shown that a victory was the result of an error, the election must be invalidated to assure that the peoples' collective will, and not the margin of error, determines the outcome.
Having failed to prove that Franken's victory was the result of errors of inclusion, Coleman hopes to win by increasing that margin of error.
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