slightly. i can't help but notice that the pattern that seems to come from the conversation, this administration recently deep-fried interrogation, in the campaign, did the same. they reserve to themselves the right to use the same techniques if they thought they were necessary. recently, i think today, the administration, mr. obama called the iraq war a war of choice, yet he chooses to continue to persecute -- prosecute that war, he has a withdrawal timetable the same as the bushes ministration. guantanamo bay issue has been

brought up a great deal, and yet it appears that the result will either be terrorists in the united states subject to all of our constitutional rights or the creation of something essentially the same as guantanamo bay. the surveillance techniques that were the pride so profoundly by the obama administration and by the campaign have been left in place the same way. i even heard the president say that we cannot sustain this deficit spending. it is enough to really amazed you some time. the justice department is involved in 3 court cases since the president took office. the obama administration position state secrets, makes it hard to distinguish from its predecessor. according to usa today's editorial page, quote, the obama administration's decision to embrace the bush legacy has all

the elements of hypocrisy. anthony romero, executive director, has written quote back when it comes to key national security policy the obama administration is continuing along the path paved by the previous administration. the new administration has embraced or only superficially modified several policies held over from the bush era including the use of the state secrets plane that the justice department invoked to throw out the suit. this is not change, this is more of the same. mr. chairman, i am thankful that mr. obama has had some epiphanies lately. i hope that he accelerates them because national-security, the economic future and constitutional future is at stake. with that said, i am going to

give mr. grossman an opportunity, they said this is not change, this is more of the same. will give you a chance to agree or disagree. >> i agree entirely and it is quite heartening. demonstrates that this is not a partisan matter. it is not a political matter. is about the safety of our nation, the tween presidential administrations, there has been no disagreement. >> i know i took the opportunity to express' some feelings that the administration has been hypocritical in some of the attacks it made on the previous administration and has come to some realities that are always easy to ignore in a campaign. what is important here is for all of us to realize the truth in time travel on the same road, the truth always has the last word. perhaps in this institution and

in our campaigns, we should try to figure out what is right instead of who is right. i yield back. >> i thank the gentleman. the purpose of this hearing is regardless of the position of any of ministers and to figure out what is right, not who is right, and i agree with you. i think the witnesses. there will be 5 days to submit to the chair additional written questions which we will forward. the answers may be made part of the record. all members will have 5 legislative days. without objection, i think the witnesses and members. this hearing is adjourned.

[inaudible conversations] >> up next on c-span2, a discussion on balancing security and privacy concerns in the digital age. later, the u.s. senate returns from work on a bill that would authorize fda regulation of the manufacturing and advertising of tobacco products. live coverage here on c-span2. with the federal mandated transition to digital television coming next week, we will get a status report on how the fcc has prepared viewers for the change. congressman joe barton, the television station manager, kevin harris, and erica swanson,

an activist coordinator. at 8:00 eastern, the communicators on c-span2. a discussion on the relationship between security and privacy concerns in the digital age. this is part of of conference on civil liberties hosted by the association for computing machinery. it is about 1:15. >> all rise. hon. justices of the supreme court of illinois. >> please be seated.

we have one incase for argument this morning in the matter of the context of general elections on november 4th, 2008, for the purpose of electing united states senator from the state of minnesota. mr. friedburg, you have reserved 10 minutes for rebuttal. you may receive -- proceed when you are ready. >> may it please the court, i represent -- let me begin by saying minnesota is quite different from many states. we have problems within our institutions and when we do we deal with them candidly and openly. we don't minimize them or sweep them under the rug to be discovered by federal torrent. that is why finding that 47 of the trial court is so surprising. an ounce in we are proud of

rejecting 0.5% of the total balance cast in november is misleading at best. the only ballots that did reject are absentee ballots. power officials rejected 4% of them. twelve thousand citizens who made good faith effort were disenfranchised. >> these 12,000 citizens comply with the absentee requirements. >> many of them did substantially. >> what does that mean? >> we define substantially as within the criteria adopted by the election counties across the state on the election night. >> haven't we said in the past that the requirements, the statutory requirements are mandatory? >> there mandatory --

>> to the voters's conduct? >> the law in this state has always been that they are mandatory before the election and they became director react after the election. and the cases for the last 75 years say that absent fraud, and absent the lack of good faith, everything will be done to hold the vote valid. that was said in anderson going back 100 years. so that when you look at a ballot, you look and determine whether or not it is substantially compliant. that is a classic law in our state. has never been changed. >> you said always. fitzgerald, 1963, we seem to have made a distinction between

elections officials, where there is something outside of the control of the voter. and voters complying with the statute. if i am reading fitzgerald right, that is a case in 1963, the voters, it is mandatory, and they have to comply. >> if i may quote from fitzgerald, when a citizen makes a good-faith attempt to vote, it will not be held in valid except by unequivocal mandate of the law or fraud. >> the court goes on and bifurcates between an active election official and also, the act of love voter. if i may quote from your own party's brief, in the reply

brief, december 16th, it talks about absentee voting being somewhat different in that it is a convenience afforded to the voters. as far as the duties of the voters are concerned they must be held mandatory in all of their substantial requirements. that is exciting to them. >> mandatory and all their substantial requirements, the in substantial ones are not mandatory. the in substantial ones were relaxed in the metropolitan counties on the election night. it is the reason there should be a fair distribution across this state. every county should come very close to applying the same standards. and novak to erikson against salmons. they always say absent fraud,

let's get to the will of the voters. these things that look mandatory on the front are directory on the back end if they don't go to the essence of the vote for fraud. that is the way minnesota has always been. >> i understand the claim is before us, we have a due process claim. >> we do. >> and an equal protection claim. do we have a claim before us that challenges the statute itself? >> we do not. >> we have one that directly challenges the application of the statute outside of due process and equal protection? >> i am not sure what you mean. we challenge the operation of the statute. we did not challenge the basic

statute on its face. >> only to the extent that there are due process violations and equal protection violation. >> that is correct. >> it seems to me that it is possible there are statutory violations which do not revise the level. >> there may be, depending on how you look at these. >> are those claims in front of it? >> yes and no. when we began this case, we argued, after february 13th, we took the position that the standards had to be much the same countywide. we took that from the beginning. when the trial court determined that they were going to enforce a strict compliance statute, we

took the position that you had changed the criteria from election night. you changed the rules after the game has been played. the judges were applying substantial compliance statewide. >> i am interested in your due process argument. at least as i read the federal cases, griffin, wrote, those cases are clearly distinguishable in the sense that in those cases, there was an announced procedure before the election. the election officials change certain the rules. we have a statute. as we read these cases, my question to you is do you contend that the election officials engaged in widespread misconduct by announcing an election procedure before the

elections, that there was reliance by the voters and a material change after the election? >> no, your honor, but there was a material change after the election because classic minnesota law, the trial court changed the game after words. >> your argument seems to me that not the election officials that change the rules, you are saying that the panel violated due process by saying we are going to have a mandatory but e how do you get around federal cases that rely on fraud, broad gauge or widespread misconduct, in this case where we have findings that there's no evidence of fraud or misconduct.

isn't there, under normal standard of review, the question is whether or not those findings are clearly erroneous. as i look at findings, 25, and i look at the conclusion of 154, it seems to me that you have to show that the finding was erroneous based on evidence in the record. i am wondering what that reference is. >> let me begin this way. the findings drive the conclusions, in this case, the conclusions came first, and finding the fact, when the trial court said we are not going to look at what happened on elections night. and excluded all evidence of what the elections did, that they -- >> where did the contest court overruled? >> they ruled from the

beginning. >> i apologize for interrupting you but i mean where? page, citation, the record. when you come up in rebuttal, that would be fine. >> they clearly excluded evidence of ballots that didn't meet their criteria on february 13th from our evidence. we attempted to show that it was substantial compliance. we wanted to show, look at these ballots. in ramsey county and st. louis county, they don't even come close to comport to the standards that you have adopted. >> that ties to your offer of

proof which begins on the improperly accepted ballots by 89. i know you are a trial lawyer but in my experience i have never seen an offer of proof like this. it doesn't identify witnesses or what they are going to see in terms of what exhibit they are challenging. it seems to me that under 209065, the rules of evidence and civil procedure apply, why is this not inadequate? we don't have admissible evidence that can determine whether or not you have met your burden? >> i can go further than that. in 40 years of trying cases i have never heard of a written offer. we set out, when prior conduct -- >> have you heard of an offer of

proof that is not on the record? >> not offhand. >> either you put it on the record orally, there are articulate lawyers who put good offers of proof or in writing. if you are going to make a distinction, tell me what it is. >> we were going to do the ordinary thing which is to put the offer in orally. the determination was, take as much time as putting it in and it had gone into evidence, so the port -- >> i don't have an issue whether it was in writing or on the record, but i would like an answer to my question. it seems to me on paragraph 16, contestants would have offered envelops of a material number of

voters and jurisdictions, your referenced representative samples of such ballots, and it seems to be the offer of proof is to identify the name of the witness and the substance of the testimony. the opponent can come in and respond if necessary to that testimony. it seems you are offering little more than an opening statement of the theory of the case but no concrete evidence to back it up. >> if you look at appendix 709 on the next hundred pages, you will see pictures of the absentee ballot, that was open and counted in minneapolis and in st. louis county. we made that offer of proof because it was ruled irrelevant. >> i will be very specific here.

i am very bothered by your offer of proof. you will obtain testimony from a substantial and material number of minnesota county election officials. you are prohibited from doing that. in 26, you say you could have called all 87 auditors, but we purposely didn't do that because we didn't want to take the time. that implies to me that you could have. but let me talk about your list of sample ballots. i have gone through those. 1016, all of that, they are basically just lists of names. in paragraph 4, you said the

testimony of a material number of individual voters, but know voters are identified. i am having a problem. >> this is 646, appendix 709. we do identify each and every ballot. let me give you an example. this envelope was counted on election night. it makes its point. i don't want to use the last name but it is the first one in 1709. it says i am in mt. juliet, tennessee and couldn't find a witness from minnesota. that was opened and counted. that is part of our evidence and the hundreds of pages that follow, they are the actual ballot envelopes that were open

and counted in minneapolis that blatantly violate the court's position on what the law is. >> let us assume for the moment that those ballots, which were counted on election night, shouldn't have been counted, because they don't comply with the standard -- >> we take the position they should have been. >> if the panel is right as to what should and shouldn't be counted, they shouldn't have been counted. so we have statutory violations on election night. how does that become a due process problem or an eagle protection problem? >> it becomes an equal protection problem when you realize, based on the evidence we have shown, and in this offer

of proof and testimony, that if people from around the state had all cast their ballots in minneapolis or in ramsey county, there would be half as many rejected ballots. >> i understand due process case law. the issue is whether there has been intentional and purposeful discrimination. and so assuming that voters have been treated differently, where is the intentional and purposeful discrimination? the equal protection problem? >> in relation to equal protection, there is that law

but i don't believe it applies to a voting issue. in relation to due process, i do not believe that that law is applicable. >> in the due process area, you rely on a case from alabama. what the court talks about, and this is consistent with other due process cases as well, voter reliance, the concern that the voter would have behaved differently had the voter known that the rules >> reporter: after the game was played. that seems to be the driving principle. could you articulate how that principle of voter reliance place out in this case? >> if i might respectfully disagree, i don't believe the reliance issue was the driving issue. in roe against alabama, you need

50 witnesses on the absentee ballot. when they got into a recount, this was a very high election for chief justice. when they got into the recount the circuit court started opening, counting ballots were there were no witnesses. they went into the federal court and said you can't do this. it has changed. is not the same system. and the federal court joined them, certified back to alabama and the alabama supreme court >>reporter: their -- reaches deron decision because when it comes back the injunction remains permanent. but what happened wasn't based on reliance, it was based -- there might have been some people who would have gone out and voted if they didn't have to get 2 witnesses. i don't think that is the driving force and it would be ridiculous for me to argue that

more people would have voted if they knew that in minneapolis you didn't have to get a registered voter. that is not worth arguing to anybody. >> there are other courts that think differently. i am looking -- i think it is the ninth circuit that says, even looking at griffin and roe, the pattern taken together, fraud holder stake will not render an election invalid but the court will strike down an election on substantive due process of 2 elements are present, likely reliance by voters on an established election procedure. then you have significant disenfranchisement.

use a reliance by voters that there are a number of courts, will you agree they take a different position? >> we have significant disenfranchisement. you are talking about a situation here where there is a geographical difference depending on where you sleep. that depends on whether your vote gets counted. that is eminently correctable. >> that is assuming that the panel got it right on the law. don't we have a problem with not so much disenfranchisement, but allowing votes or ballots which should not have been counted on a election night? >> you have a horrible problem. >> we have a dilution problem.

>> dilution indicates proportionate reduction, what you have is the inability to say you have the most legally cast ballots if the count is full under the court's definition. >> that is -- >> are you speaking in a bell sense? >> it seems to me that we don't have an issue before us as to the ballots that were counted on a election night being improperly included. they should be excluded. >> we are certainly not trying to get them excluded. >> but that is my point. >> we are trying to get them to be used as a control for what the proper evaluation of a ballot is. that is only fair. >> but