garden-variety problems that crop up in every election do not lead to a constitutional or statutory problem. it is only where you have this complete failure, this complete absence of any standard, this complete absence of any effort on the part of the election officials to comply with the law, that this court has held that there is a injury in a contest. . .

why aren't those longstanding principles about intentional discrimination go by the wayside in light of bush v. gore? those longstanding principles don't apply anymore? >> what bush v. gore says? can have conduct that becomes so arbitrary, so egregious that it rises to the level of intention. what the court found in bush v. gore and why we have not argued as others have that bush v. gore was a won and done ducat, no presidential value, it is fair to read bush v. gore, that it

has presidential value, the court was clear in limiting it to a unique set of circumstances, where you have conduct in court overseeing a recount. in that recount these ballots were open. governor bush knew what the score was and vice-president gore's team knew what the score was. was in these ballots, they were looking at completed ballots and without any standard in that circumstance, with the court standing by letting these be counted by would ever stand in the election officials came up with, you had an extreme example of where gamesmanship by the 2 sides could take place because they knew if they ruled that the standard applied in a certain way with a certain ballot, they ruined the outcome because the ballot was in front of them. none of that was present on election day. in minnesota you had a hard working, it was clear and the testimony of every witness, hard working minnesotanas who did

everything they could to it minister a fair election. they use different tools available to them in different jurisdictions to make that work. that is not a violation of equal protection. >> your time is expired. thank you. >> i believe i have some direct questions to answer. judge gildea, on page 4 of our brief recess after several days of testimony the court ruled disparate treatment of ballots on election day was irrelevant. it therefore refused to permit evidence regarding how local officials judged absentee ballots on election day and there are about 10 citations to the kranick script where i tried to get that evidence in, and repeatedly could not.

it refused to admit absentee ballots that failed to meet script -- script -- strict compliance standards. i couldn't get it in, i tried to the point where i strained the court's patience. i don't want to go further than that. these judges were well tempered. >> let me explore that with you. i am still hung up on this c-1013. let me put it this way. is it your contention that all you need to show is that there is a ballot that doesn't have a signature on it to prove up that it was -- that it was improperly accepted by an election official? or do you concede that you have to show that it was otherwise improperly accepted? what i am getting at, there

could be other explanations. as al franken's lawyer argues, every ballot tell the story. we don't have the story so how do we judge? >> first of all, that might be the biggest non sequitur in anglo-american jurisprudence. every ballot doesn't tell a story. whether a ballot should be opened and counted, you do that from the face of the ballot. that is how the judges made the decision on election night. that is how they made the decision in trial court. >> beyond that -- there are other reasons that a ballot doesn't have the signature on it, was properly accepted? >> there might be an explanation for that. neither of us know. there might be. >> the counselor gave one explanation. the other explanation is for the first time, in minnesota,

292,000 people, there are long lines going to city hall, getting these applications for absentee ballot. i am only imagining, but is there at least some evidence in the record that you have the clerk behind the counter that is accepting the ballot at that time? and is there at least the possibility that the clerk inadvertently failed to get the balance signed by the voter before it was accepted? >> those things are all possible but when you look at appendix vii, we are talking about hundreds of ballots. we put a sprinkling in of hundreds from just minneapolis and st. louis county. statistically, sure, there might be an official era here or there, or a replacement ballot here or there, but we are talking about hundreds. when we talk about the

difference between carver county -- >> a sprinkling doesn't help us, does it? >> i think it does. we extrapolate in life, you take carver county, where there are 180 ballots kicked out from now on registration, because they checked the non registration of the witness. then go over into minneapolis and st. louis county, where they can't out none. can't we say that it is reasonable to believe, one county being as smart as the other, that you will find the same percentage? so you multiplied times 4 or 5, now you know that in all likelihood, more likely than not, which is our burden -- >> i would suggest that the other side would say bring in the ballots and let's look and see. >> there is no reason to because our burden of proof is to make it more likely than not.

not prove it so that nobody has any doubt. >> i think their argument would be we need to see the ballots so that we can show what happened and why it was either properly or improperly rejected. >> they grab on to this statement that every ballot has the story. >> i am not interested in the story of the ballots, but one would like to know whether they were properly or improperly accepted or rejected. the only way to do that was to look at specific ballots. >> they are in our offer of proof and the trial court didn't look at them. there is no indication anywhere that any of these hundreds of ballots were ever looked at by the trial court. >> let me ask you this question. during the recount proceedings,

there was a motion for the injunction for your client. on page 9 of that motion, there is a statement, the canvassing board must strictly follow the legislative clean, imposed requirements for absentee ballot, in order to preserve the integrity of the entire election. is that consistent with the argument you make today? >> it is not consistent but you are going back to a time when we believed that the election judges uniformly applied the law and they applied it the way it was written. it is later, we tried to get in another 500 or 600 of those when we realize the discrepancy between the geography. when we realize that your vote counted, it depended on where you cast it, then >> reporter: and we said you have got to and franchise these people, you can't take away

their vote because of where they live, and we changed when we realized that the standards were different around the state. >> how do we enfranchise people who didn't comply with the law? >> they did if you apply the same stand is the election judges applied on election night which we maintain, and i have to get to judge anderson's question, that we maintain substantial compliance standard. >> i suppose in this end we will decide what the law means and what the law requires, but if we conclude that its terms are mandatory, how do we enfranchise all these people who didn't comply with a mandatory terms? >> he determined that the trial court's standard is correct, then it is a different standard than was applied on election night and you have a due process

violation. >> what was the expectation of a voter, what would have been the expectation of the voter when they cast their ballots? would they have the expectation of compliance with what ever they did on election night or would they have expectation of compliance with the statute? >> all i can tell you is that every voter here, forget the 4400, everyone of them did the best job they could do to get their votes counted, which brings up the issue that the ones that were ejected did not know about it and i don't know. >> i am going to pause here and just ask, is there any evidence of any fraud, any favoritism, or anything other than the elections in minnesota tried to do the best job possible? >> absolutely not. absolutely not. then there is no voter fraud, no

election fraud. if you go back to erlandson, is this a right or a privilege, the court didn't resolve that question. what is happening now, there's a great motion in this country, 10% of our voters voted absentee this time, people are voting absentee. it is no longer a privilege. the court didn't resolve it in erlandson that the majority of the court voted -- this situation in skinner against o'brien is about whether they could vote at all, not whether it is a privilege to vote absentee. that is what it has become in this site. is this court -- >> doesn't the legislature have a right to be concerned and put in a strict standard?

don't we defer that the legislature's decides the strict standard. the cases are replete where fraud happened with absentee ballots. >> if you go against prints, those cases all say that when a person makes a good-faith attempt to vote, absent fraud, substantial compliance is about, absent fraud, maybe the law -- maybe it is the character of the people in minnesota. i do have 2 fraud cases to answer your question. they're both fraud cases. >> can i ask the question? counsel, do you concede that

under 2043 subdivision 6, that a candidate has the right to challenge ballots in the precinct, at least with respect to this statute, the return on the low would be cast at the precinct and therefore the candidate would have the right to challenge that return envelope after the precinct under that statute? >> absolutely 100% unequivocally no, your honor. >> does the statute gives the candidate the right to challenge and in person ballot at the precinct? >> it does. >> your view is subdivision vi is limited to in person and not absentee balloting? in the language of the statute?

>> may be theoretically, but that testimony in this case from mr. mansky, all the people i asked, i asked a question, the challengers have anything to do with absentee ballot in these times, and the answer every time was absolutely not. del has no application based on what is done today. it is an anachronism. be bellwas a fraud base in one precinct. all the evidence including instructions from the attorney general to the election judges, no relationship between the ballots and absentee ballots, cannot be done, it is not physically possible. they are there to challenge the eligibility of an in person voter. >> your time is expired. we shall take this matter under

advisement and an opinion will be forthcoming. we are adjourned. >> all rise! ♪ >> you are watching c-span2, your home of u.s. senate coverage. here is what is ahead for the next couple hours. coming up, the national governor's association unveiled their latest survey of states. later from the rand corporation, discussion on the future of iran. ♪ >> join us later today for a speech by david simon, creator

and head writer of the wire. mr. simon also wrote for the baltimore sun for 12 years and he will talk about the future of journalism. that is live at one:00 p.m. eastern on c-span2. here is a look at tonight's edition of the communicators. >> with the federally mandated transition to digital television come in next week, we will get a status report on how the sec has prepared viewers for the change. william blake, congressman joe barton, television station manager kevin harrison, and erica swanson, activist group coordinator. we will have that tonight at 8:00 eastern. the communicator's on c-span2. we have more live events later with national intelligence director dennis blair. he is speaking to the national security alliance. you can see that live at 8:30 p.m. eastern after the communicators on c-span2.

>> how is c-span funded? >> private donations? >> i don't really know. >> public television. >> donations. >> i don't know where the money comes from. >> contributions from donors. >> 30 years ago america's cable companies created c-span as a public service, a private business initiative, no government mandate, no government money. >> last thursday the national governor's association announced their findings that states are facing the steepest budget cuts in at least 30 years. spending is projected to fall for the second year in a row. more on the state of the state. this is about 40 minutes. >> good morning ladies and gentlemen, welcome to the fiscal survey conference call. at this time of participants are and listen only mode. later we will conduct a question and answer session. i will now turn the call over to

mr. stockman edison. you may begin. >> thank you. i am the executive director of the national association of state budget officers and with me is dr. ray schapock. today we are releasing our fiscal report which we do twice a year, and we have been doing this report for well over 30 years now. unfortunately, i have to report that these are some of the worst numbers in the have ever seen. for the first time ever, actual spending for the states is going to decline this fiscal year 2009 and fiscal year 2010, 2 years and a row. the last time this occurred, the only other time that state had an actual outright decline in expenditures was in 1983. that was just a little below the

line, about.7%. let me give you some numbers. state spending is estimated to decline 2.2% this fiscal year, which everyone knows ends on june 30th. we are projecting state expenditures will have an actual outright decline of 2.5%. that is very significant, both because this is 2 years in a row for the first time, also because these numbers are much more significant in terms of decline than the only other decline which was 1983. thirty states estimate their fiscal year 2009 budgets will be negative. only 6 were negative in 2008, to give you a little bit of perspective in comparison. in 2010, we expect 30 states will have negative budgets.

year over year they will be spending less than they did the year before, they did in 2008. one indicator of fiscal stress that is very good is the actual cuts made to budget after passage. after the governor has signed the budget, there is a chart here that shows these. we actually have a record for the first time ever, forty-two states in this particular fiscal year will have gone back and had to cut after passage of the budget. the last time we saw significant cuts were 2 years in a row, the post 9/11 recession period, 2000/2003. as you see, 37 states in 2002, 37 states in 2003 actually went back and cut the budget. following passage and signing by the governor. fairly significant, they were up

to 42 this year. to put that perspective last year, fiscal year 2008, 13 states had to go back and cut the budget after passage. we have seen a fairly significant change in just one year. the other thing i want to emphasize is that this report really demonstrates how quickly the decline in the state fiscal situation has declined over the past 1 or 2 fiscal years, especially indicators where you have 13 states cut after passage in 2008 and now it is up to 42. let me say a few words about the budget gaps, the shortfalls the states are experiencing. there are large majorities of states facing shortfalls. there is a chart here on those. 36 states have had to close gaps already during this particular fiscal year. we still have 20 states that are still closing gaps, have additional shortfall. in addition to that, 2010, we

expect 37 state to have budget gaps. that may grow. in 2011 it is very difficult to project that far ahead for fiscal year 11. so far, 24 states are reporting they have budget gaps expected in 2011. about half the states in 2011 expect a budget that. i would expect that that would grow also. let me talk about revenue collections in this report. no surprise to anyone that revenue collections are down significantly in all sources of revenue. there are numerous reports just finishing up the election period, that have demonstrated anecdotally and otherwise very significant declines in revenue. currently what we are seeing in this report is an overall aggregate 6.1% decline year over year in state revenue in the 3

major sources of revenue, sales, personal income and corporate income tax. in 2009, this current fiscal year, revenues exceeded expectations in only 2 states, wyoming and north dakota, which tended to be anomalies. we had budget gaps where forecasts were not met in 38 states. i would not be surprised as we end this fiscal year on june 30th, that number might grow. specifically, sales tax collections for 3.2% lower, personal income tax collection, 6.6% lower, and corporate income tax, 15.2% lower, this fiscal year over the last. unfortunately, i believe, based on very recent anecdotal data, that those numbers may understate the decline in the tax revenue situation for states at the end of this particular fiscal year. let me finish up with this

report's conclusions on balance levels, balances, rainy day funds, end of the year balances, they are good indicators of fiscal health at the state level. what we have seen is they are down but they still lag in terms of the fiscal situation. what i mean by that is they look a little better than the actual fiscal situation. what we see is balances a little over 5% of state expenditures. that is a fairly significant decline from 9% last fiscal year, 2008, well over 10%, fiscal year 2007. although i want to put these balance levels in perspective, there are couple things going on. states don't tend to tapped the entirety of the rainy day fund immediately. you expect those would still exist. interestingly, texas, alaska,

account for almost half, 40% of state balances in their totality. if you took those that you would have lower balance levels. some states, i should mention, are beginning the process of draining their rainy day fund. in the next few months, some of those will be at 0. this report, unfortunately, shows the fiscal situation based on, as long as we have been doing this, one of the worst in decades. and whether we have growth budgets in 2011 or 2012 or even 2013, will depend on the life and disparity of the recession as well as many other factors. with that and for further explanation i will turn it over to the executive director of the national governor's association, dr. ray scheppach. >> thanks. i just want to do 2 things, talk a little bit about the

relationship to the recovery package to these particular numbers, and just stress a few of what i would call take aways or bottom lines. in terms of the recovery package, it was a total of $787 billion. of that, $246 billion actually came to states or through states in terms of retirement to individuals. of that total, $135 billion was relatively flexible for states. that really came out of 2 categories, the first was the eighty-seven billion dollars in medicaid. it is not that the federal money was flexible but it allowed states to take the previous match they were going to do of that 6-1/2% or so, and use that to plug holes in places. the second piece was the state stabilization, $48 billion, which went to education.

because education totals 30% of the average budget, there was a lot of flexibility there as well. the remaining $110 billion was very specific in terms of categories, flexibility to essentially move that money around. it provided the flexibility because as economists often say, because of the balanced budget requirements, states during periods of this, do pro cyclical activity, cutting budgets and raising taxes, makes the downturn deeper and longer. when i look at the recovery package, it was very positive, though for the states as well as the economy. the $135 billion was a high percentage of the total that came to states that was flexible, which was really a plus. second, the money came in 2 areas that governors generally

try to protect in terms of budget cuts. basically education and health care. third, unlike most previous fiscal packages that were always too late, it looks like this one was, in fact, in time and you have seen a number of states where they have put cuts on hold. the bottom line is this downturn, from the same perspective, would have been a lot worse if we didn't have a recovery package. the economy has continued to deteriorated in spite of the recovery package. that is leaving us in such a deep hole. a couple other comments i want to make with respect to the decline. first, it is clear that we have 2 or 3 years more of a very difficult times from the state perspective. if you look at this chart here, really, what stateve