cars in front of me were speeding, they got away, why do i get the speeding ticket? >> they are not speeding. those ballots that got in substantially comply with the law, is a classic minnesota law. the election officials in the metropolitan counties got it right. the election officials in the smaller counties got it wrong, and the trial court got it wrong. this is not strict compliance. it is substantial compliance. ..

>> how are we to say that the court here, the panel here, abused its discretion in making that conclusion? >> your honor, we didn't say most did that, but i don't think we said most. i said if you add up an amount under an album of the election judges from around the state you will find an overall substantial compliance situation. and then the court said what you want to show us about what was done on election night is irrelevant. >> i'm quoting from your brief, page 39, footnote 15 will be overwhelming of counties and cities up library is presumptions.

meaning they didn't strictly comply with the statute. they applied these very is presumptions. and i'm just troubled by that very broad statement, that the overwhelming majority of minnesota -- i mean, wherein the record is their evidentiary support for your assertions? >> you can read the complete text damone of mr. nancy from ramsey county, the biggest political subdivision. he says no application, our fault we let again. >> i understand you have evidence from ramsey county, but where is evidence from the overwhelming majority of the counties and cities? >> every auditor we called, as i recall, made exceptions. now i think we only called about 26 or 27. >> we have 87 counties. i mean, we are reviewing the work of a panel of three trial court judges here. and they took evidence, and where is the evidence even that you called, as you said, you didn't even call witnesses from

a majority of minnesota's counties. you're asking us to presume based on the testimony from a sampling of counties that that practice is applied to the majority of the county's. >> your honor, the evidence you're even from the secretary of the state is, for instance, that counties that didn't check to see if the witnesses were registered. that's the evidence in the case. there's only six or seven that did. resulting in thousands of pallets presumptively, and this is a commonsense presumption because you have 180 people kicked out a little carver county because the witnesses isn't registered and you have none in minneapolis and none in saint louis county. you could presume that people in each county are as smart as each other. to all you have to do is extract light, and i hesitate to use this case or anything, but they did that in bush against gore

when they compared the relaxed standard in broward county with the unrealized standard in on beach county and said a population should have equaled. when plymouth kicks out 75 for signature mismatching and 31 counties in the state kick out non, we've made our case. can't make it any better than a. >> council, your time has expired. >> i would like to frame a question so i can get an answer, if i may. council, i'm still having problems with your saying we're a substantial compliance state. and i mean as loud as you speak on this issue there's language that i don't think you can overcome. i will give language again from wickelman that says if the statute or directory, the argument would be of some forest, but it has no application here because the statute is mandatory.

and in the court goes on to express concern about letting the buyer stone altogethealtogether because of fraud and then it says the absentee vote the statute is an variation of the general election law. it's different from the common law election law, and should be strictly construed. so when you come back, i mean, i've got to deal with this language. and i mean, it's a no, it's in wickelman. >> you want me to deal with it on a rebuttal? >> yes, please do. >> thank you, counsel. >> you may proceed.

>> thank you. may it please the court. my name is marc elias and i'm here on behalf of about franken. i would like if i might by noting one of the most significant findings of fact made by the trial court. >> council, before you get to that finding of fact, let me ask a question and hopefully counsel for the other side will be able to respond to this on rebuttal. to the extent that the united states senate will make the ultimate decision here, and to the extent that they don't have to follow what we do, how do we issue an opinion without having it being an advisory opinion lacks. >> in essence, do we have authority to do anything here? >> your honor, this question was

raised with the district court as to whether or not the court had jurisdiction. the court found, and we believe appropriately so, that the court had jurisdiction to determine who received the most lawful votes, even though the senate has in its purest diction to decide who is seeded. that is a case from south dakota that involves now senator daschle, but congressman daschle's first election. and it is a distinction, the supreme court adopted albeit under a slightly different circumstances that the ability of the state process to move forward so long as it does not impede the senate does not deprive the state court of jurisdiction. so i believe the court has jurisdiction to proceed its no secret ibc that i stood here once before suggesting that a certificate of election should issue so that the same business

could proceed in the intro but the court spoke aloud in court on that point. but i don't think that there was a suggestion in that opinion that the court -- that there was a complete lack of jurisdiction. i think that such a finding would have been inconsistent candidly with the court ruling in the franken versus valenti case. >> and i just moved to the question here is who got the most legal leap untranslatable he cast votes? and what i want to know really is your position on the merits of a paragraph 16, of contestants offer of proof. and that, that's the one the judge reference in his questioning. in the offer of proof, and specifically exhibit c-1013, you look at the first ballot in there, the first envelope in there and it appears spatially that that was not a proper

absentee ballot. and what i want to know is if we're supposed to decide who got the most legally cast votes, and there is evidence that suggests that illegally cast ballots were accepted, now i understand we can tell who they voted for because that horse is well out of the barn. but how can we tell who got the most legally cast votes? >> well, your honor, this is part of the problem and frustration candidly with a balance case. we have a valid envelope. we have a copy. we know that that voter voted. we don't know if the voter got a different ballot. we don't know if there was a different situation in all. we don't know what the facts and circumstances are other than a copy of an envelope, and one day she there is perhaps no fact that was more clearly established by more witnesses being asked the question and testifying directly than a phrase that was used by one of

the first witnesses from the secretary of states office is that every ballot tells a story. that was a phrase that resonated through this very court room day after day, witness after witness. that you cannot do as appellate try to do in the trial court below and are trying to do before this court to take broad brushes and say here are categories ballads because as many ways as there are to cast the ballot, there are ways for ballads to be projected for noncompliance of the law and to be corrected when diligent local officials contacted voters reached out to voters, look into the facts and circumstances behind the voters. so candidly, being offered a written offer of proof, one of the first of which came a day -- >> forget the procedural niceties. your point, i think, it was his burden to prove it, he didn't really. he can't stand appear now and speculate. >> that is correct, your honor. that is correct. and if i might, the finding of

fact that i wish to call to this court's attention, which goes to this point is from the march 31 order of the trial court in which they held that of all of the rejected absentee ballots, the parties approved registration for approximately 650. 650 of all of the ballots presented to this court. that's voter registration. that's not all of the other requirements that appellants have now complaints about. it is the most fundamental requirement of the voter be registered. of the 650, 351 were opened and counted. so the universal ballads, properly platt, and about which this trial took place, stand at 299. now, obviously the margin separating the two candidates is a 312. as a result, even if every one of those 300 or so ballots for which a voter registrations,

doesn't mean that witness was registered, doesn't mean the certificate was properly completed, it doesn't mean that they only cast one ballot. but they were at least registered. even if all 300 of those were for the appellant, and even if all 300 met all the other requirements, it would still be impossible for the appellant to make up the difference. and since the jurisdiction of the trial court and the jurisdiction of this court is determine who received the most lawfully cast ballots, the question answers itself. al franken received more lawfully cast ballots on election day ended senator coleman. >> council, were any illegally cast absentee ballots counted and included in the vote total? >> i'll answer that two ways. one is to say that there is nothing in the record identifying a specific ballot that was in the vote totals. i think it is fair to say that in every election, in every

state in every county and in every precinct there is some ballot, somewhere, where a felon vote and it wasn't picked up. where someone wasn't registered and skirted around the table. where some other regularity to place and wasn't caught, but that has never been the standard in this anywhere. >> let me just finish it this way. we're talking here about the universe of minnesota absentee ballots. you would have us -- you've got a broad lands. you look at the whole universe, you say there is some intelligent design mandated by statute, and there is not chaos. it is order. there may be some, and you can cede some average star system galaxy or however you want to do it. what mr. coleman is saying is that he focuses on, look at this aberrant galaxy, look at this aberrant, this is proof that the universe is chaos. and in fact, they have shown me that. they have shown that there is

some chaos in this universe. it's been pinpointed. tell me why they have not shown us enough that we should not implicate due process and equal protection here because, yeah, we can't see the whole universe but they have shown us enough to show there's a problem, and it implicates due process and equal protection. >> your honor, i have several answers. first, the trial court leaving this court's decision now correctly noted that the times to challenge an unlawful vote is before it is separated before its envelope. it is at the time that the ballot is delivered to the precinct. >> council, the problem i have with that is many of these were counted by absentee ballot boards in the metro area, and i don't see anything in the statute that would provide an opportunity for coleman to challenge at the absent he outboard.

and i certainly don't see any indication that he would have received notice, or either candidate would have received notice. it seems to me we have those categories that would have been on the outside envelope that there was no opportunity for coleman to object to, and we are now left with what's on the return envelope at the precinct, for which he could have i suppose under the statute object if you'd just him in person ballot. >> i think -- >> am i correct? >> i think your honor into the question in the last payment is not ultimately could have objected to that in the precinct and although it may have been difficult to do so. >> there are some that would have been on the outside envelope that was not part of what went to the precinct that he would have lost the opportunity to object to, right? >> i believe that the outside envelope goes to the precinct

along with about. i believe they are separated at the precinct. the outside envelope is reviewed for determination of whether it's accepted or rejected, but i believe -- >> setting that issue aside. we are now at the precinct and we have the return envelope. what innocent explanation, if any, is there for these ballots in c-1013 that don't have the voter's signature whacks it seems to me that is a clear requirement and on its face are not complied with. i mean, i -- is there an innocent explanation? i would like to hear at. >> your honor, there may have been a replacement ballot. we don't know. we stand here being told that there are quotes some 4400 ballots. some subset of some 4400 ballots. this court ought to go back and take an amalgam, use it again

today at argument. through 87 counties, after the election is completed, the court ought to set the standard based on what the outcome of practices was. and to determine which of the some 4400 ballots that were presumably cherry picked by counsel and by the appellant to meet their other needs, and figure out which county -- >> council, which the answer to my question? is the lack of a voter signature dish well, a voter signature is a statutory requirement. absent that, it is a properly accepted ballot is in a? >> it is but again we don't know the story behind that ballot, and in this courtroom? >> what is an explanation for that? >> that the individual was unable to sign their name because they were handicapped and unable to write, that i don't know what the other

reasons are, but there are stories behind these ballots. there are reasons why the election officials accepted and rejected ballots. and sympathy needed to a doctor on the last day of trial and delivering them to us does not -- is not evidence. its argument. and, your honor, i specifically appoint a score to the finding, to the courts ruling that this argument was waived for failing to properly plead it and failing to properly identify these ballots in response to discovery requests. these exact questions, but your honor correctly asked today are questions we asked before trial. tell us which ballots they are so that we can go out and prepare for trial. >> council, let me just explore that with you for just a minute. i certainly see findings from the panel that there weren't an answer to an interrogatory. but going to the statute, i noticed the contest set forth grounds. it doesn't say the pleading has

to contain legal theories like due process, equal protection. and certainly doesn't say that in an answer you have to plead all affirmative defenses. certainly hear you didn't plead waiver, so if we follow your waiver argument, you didn't plead waiver so you waive the right to plead waiver. >> your honor, our concern was not the failure to plead due process, it lead equal protection. it was a failure to identify the ballots. which ballots. don't does there are some 4400. which are the ballots? so that we can do what we need to do to prepare for trial, which is to go out, look at those ballots and find out the answers to the very questions that your honor asked me. what is the story behind this ballot. every story told about, what's the story behind this ballot and we asked that question before trial again and never received an answer. it was not until the close of the case that the ballots were identified. at that point it was obviously too late. the waiver that i believe your

honor refers to regarding the pleading of a cause was the due process claim were equal protection was glad, and during oral argument i sat in his courtroom and for the first i've heard rovers as alabama, a case which i'm quite familiar with, uttered as part of the closing argument. now, whatever notice is required of a claim of a due process violation it clear he must come before the contest and close their case in argument. >> council, let me switch subjects here a little bit. the equal protection and due process claims, what standard do we look to in reviewing those claims? >> i believe, your honor, correctly identified if you look at both the federal constitutional law and state constitutional law that absent a case that involves a burden on a

suspect classification which is kind of a separate type of equal protection or due process claim. there is no allegation in this case that we have a burden, or even intention or a burden on suspect classifications that absent intentional or purposeful discrimination, or arbitrary treatment that is so extraordinary that it undermines the fundamental fairness. then there is no violation. >> council, that isn't the standard that we applied in erlandson no. >> i believe, your honor, in erlandson the court noted the holding of bell and wickelman, noted the supreme court issued the supreme court's standard and mcdonald of rational basis grouping and adopted something, it appears to me in my reading, and arbitrary capricious or

rational nature so it was a low level of scrutiny. whether you look at erlandson or frankly whether you look at timmons or overlooked which are short of the more sliding scale approaches, the administration of elections which is really what we're talking about received a higher deference by a court. the states must be able to write laws about how ballots are going to be sent out, how they are going to be received, how they are going to be processed and how they are going to be counted. if you hold that up to heightened scrutiny, then you will put sand imagers of allowing an election to take place. >> but you would concede that changing the rules after the election is a violation of fundamental fairness. >> indy, your honor and indeed the changing of the rules would be to say let's hold an election, then let's figure out what all the counties did, create an amalgam of that and then apply that standard to the past election. the clearest way to avoid a problem under the due process laws and under the case of a roe

versus alabama and briscoe and griffin is to have the court enforce the law as it is written and this court has made crystal clear through a series of cases that when it comes to absentee -- the requirements for absentee voting, there is mandatory requirements with the voters responsibility to comply with those provisions. and the clearest way to -- cannot counsel, i want your sides to that and a lot because that's a question i asked contestants to address on rebuttal. so when you cytec, what is your authority that it is mandatory and, in fact, the change would be to a substantial complaint instead of strict compliance? >> i would point you to wickelman, the city of lendrum in which this court said and i quote the provisions of election laws for required acts to be done and imposing obligations upon the lecture which are personal to him are mandatory. he is personally at fault if he

violates them or get his voters rejected for such violations it is because of his own fault, not that of election officials. such provisions prescribed mandatory conditions, president to the right of voting. this court was clear and wickelman. i can also point you to bellwether site, extensively from wickelman and add additional emphasis to it, but i don't believe there is any doubt with respect to absentee voting as to the mandatory nature of the requirements on the voter. with respect to the second part of your honor's question, the due process prong of this. if you look at the facts of roe, you are strong that road stand for the proposition that a statute that requires proper witnesses for absentee ballots cannot be lowered by the state court after the election has taken place. so if this course is concerned about a potential rogue violation, the easiest way to avoid that instantly apply the statute of the trial court did as it is written, not as it

might be better written by the legislature, not as it might be rewritten by the legislature. i would add an observation along these lines, your honor. minnesota is one of a handful of states, i practice in election law throughout the country, and minnesota is remarkable for the lowering of the barriers that have taken place to allow an in-person voting. it is one of the most friendly and progressive states when it comes to instant person voting. every time it made that judgment it could have said we're going to follow the lead organ, we're going to follow the lead of washington and we are going to make vote by mailing. we're going to make absentee voting and they chose not to do that. that was a conscious choice that if you look at the crawford decision from the u.s. supreme court where it upheld in indiana statute involving id. they identify the legitimate interest that a state has to prevent fraud and cited specifically -- >> and i just go back to erlandson for a minute? we said there are on page 732,

by treating similar situated voters differently with no rational explanation, the statute violates equal protection guarantees. and so that's the argument that's made here is that similarly situated absentee voters are being treated differently. and you would articulate a rational explanation for that different treatment as what? >> as the need for the counties in the precincts to have the flexibility to allow elections to work. the fact is in pine county where there may be one street called main. in minneapolis there maybe 20 streets that have main. so in minneapolis you may need a different standard for whether or not it says mainstreet, maine avenue, main boulevard. whether it has a directional -- >> is there evidence in the record to support this rational explanation that you're offering now? spivak there isn't a. the trial court found that there

is difference of technology, different personnel and resources were among the differences that justified the difference interpretation that counties brought and personnel brought to being satisfied and i point this court to that operative word. if you read the statute, what it says is that the election judge must be satisfied these requirements were met. and that term satisfied obviously connotes that there is going to be some measure of discretion involved, some reasonable discretion that puts grease in the joints so to speak, that lets the election take place. on one day at the same time that the election judges have to keep the lines from getting too long, the polls opened on time, keep disruption from happening, make sure new voters are getting registered, make sure that people are getting orderly through the equipment. they also have to be processing these ballots. >> that sound like substantial compliance which is of course exactly the opposite of what you're arguing. >> your honor, it is not

substantial requirements. are mandatory in all respects. the fact that accounting official, an election judge, one democrat and one republican working together might use different -- different pieces of evidence to meet their need to be satisfied doesn't mean the law isn't the same everywhere. the requirement eyewitness be registered, for example, points that appellants make much of. that is the law in all 87 counties. in different counties there are going to be different practical considerations to how does the election judge satisfies themselves that they are registered. in some counties they are going to satisfy themselves by looking up in the spr as terminal. in some counties that either not available to them because they don't have the technology available or because it would just have to be impractical. so they rely on other additional like the address. that doesn't connote a different standard and it certainly doesn't rise to the level of an equal protection violation.

or anything that this court has ever held would cost out on an election and in that regard i would point your honors to the court's discussion in green, contrasting cases like clayton versus brands and subsequent to that, with the facts and the holding of veg and i apologize if i missed pronounce the name of that case. in batch green says the court based this court can't quote the officials in charge of the election committed to such serious and numerous violations as to indicate not only an utter unawareness or disregard of election laws but also such a striking absence of effort to comply with any laws that no confidence could be placed in the integrity of the election. that is because the court said quote an absence of all effort to comply with the law is equivalent of bad faith. and if you look at the history of the cases in this