of american citizens, and to reserve our greatest concern, and greatest concern, for those who assured the lead. and you are right to remind us of jack kemp, because in his every breath, he started with the citizen who had not gotten up the matter yet, -- lkad adder yet, and he will always be an example for us to look up to. >> if we have not gotten across, then we have not done our job. that's exactly the point where they need to speak to the voters. what it means to think about the problems of america is not to stand back and stand at a great distance and think about it. it means to think about the life

of a family. it means to think about parents who confronts a difficult balance between the needs a regular families and the needs of prospering and making money. it is a balance that exists at the very core of conservatives and has at the very beginning, this tension of what we think now of social conservatism and fiscal conservatism. that is not a philosophical problem. that exists in the life of every american family, and our effort to think about that and our ems that deal about that -- middle class parents face and inner city families face and in bringing up a new generation of americans and a dream of social mobility therefore begins at the bottom not at the top and is to my mind that's what it means to think about the problems of the moment, the problems that face that problem and that family and worker and person in need. >> rich? >> absolutely. i agree with that and john's

question and uvol and it's not just kemp that was on to this. it was abraham lincoln who said insofar as there's any measure that will them lot of the average working man, i am for that measure. and i think that attitude should be at the core of what we're about as conservatives. >> we end on the note that free enterprise is at the center of american culture. it is the essence of opportunity and freedom. entrepreneurship is a question of character and indeed a vehicle on which we will take not the conservative movement bureau america on greater and greater heights and a note on which i'm delighted to leave you today. before we break up i do want to ask you to join me in thanks to the bradly foundation. as many of you know it has been the leading venture phelan

throw pist in the cause of philanthropist in the cause of celebrating entrepreneurship, defending free enterprise. this this is something that's been of great benefit to our communities and indeed to the united states so, please join me in thanking the bradly foundation for this conversation and so many others. [applause] [captioning performed by national captioning institute] [captions copyright national cable satellite corp. 2009] >> and thank you to our panelists. and to all of you for your attention, your energy and your interest in the conversation we had today. thank you, very much. [applause] [captions copyright national cable satellite corp. 2009] [captioning performed by

national captioning institute] >> coming next, from minnesota, oral arguments with the election recount between norm coleman and al franken. after that, the iranian presidential debate, and then after that, the in iran defense strategy. the u.s. house gavels in at 12:30 p.m. eastern. on the agenda, a bill reauthorizing state department programs for 2010, which includes the u.s. peacekeeping and legislation to increase aid to pakistan. you can see the house live on c-

span. the senate is back live in the afternoon with a bill to regulate products, a vote on a substitute amendment expected in the afternoon. it is possible next week that congress will vote on a report. the house is expected to vote on the measure first followed by the senate. senators can also debate a bill concerning the number of foreign tourists visiting the united states. see the senate on c-span2. and now, attorneys representing republican norm coleman and democrat al franken argue before the supreme court in the case of counting absentee ballots in their senate race. roughly 4400 ballots should be counted, a claim rejected by previous courts, according to north franklin. this last one hour 10 minutes. -- norm coleman.

>> all rise for the supreme court of the state of minnesota. >> please be seated. we have one case for argument this morning in the matter of the contest for general election held on november 4, 2008, for the purpose of electing united states senator from the state of minnesota. mr. friedberg, i see you have reserved 10 minutes for a bottle -- for rebuttal? >> good morning, and may it please the court. my name is joe friedberg. let me begin by saying that

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 do not minimize them or sweep them under the rug to be discovered later by a federal court as in 1983 litigation. that is like finding the fact 47 of the trial court is so surprising. announcing the we are proud of rejecting only 0.5% of our total ballots cast in november he is misleading at best. the only ballots to get rejected are absentee ballots. our officials rejected 4% of them. 12,000 citizens who made good faith efforts to vote where disenfranchised for a variety. >> these 12,000 citizens, did they comply with the absentee voter requirements? >> many of them did substantially, your honor, many of them did. >> "substantially."

what does that mean? >> well, we define substantially as within the criteria adopted by the election judges in the counties across the state on election night. >> have we not set in the past -- said in the past that the statutory requirements are mandatory? >> they are mandatory -- >> the voters' conduct? >> in this state, it has always been mandatory before the election, and they could be directed after the election, and the quotes from the last 75 years says that absent fraud and abs and the lack of good faith, everything will be done to hold the vote invalid -- absent fraud and absent the lack of good faith, everything will be done to hold the vote valid, and you

look to see if it substantially complies. that is classic lot in our state. it has never been changed. >> council? >> yes, your honor. >> you sent always -- counsel. >> yes, your honor? >> you said always. in 1963, we made a distinction between election officials, where there is something that is outside of the control of the voter, and voters, and voters complying with the statute, and if i am reading fitzgerald right, that is the case in 1963, it says that the voters, it is mandatory, and they have to comply. >> if i may quote with fitzgerald, it says that 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. that -- >> and then, the court goes on, and bifurcates between -- and it bifurcates the treaty act of an election official and also the act of the voter -- bifurcates between the act of an election official -- in the reply brief i think on december 16, it talks about absentee voting. being somewhat different in the fact that it is a convenience afforded to the voters, and so far that the acts of the voters are concerned, they must be a mandatory in all of their substantial requirements. that is quoting from a court case. >> mandatory in all of their substantial requirements, and the insubstantial ones are not mandatory, your honor, and it is

the insubstantial ones that were relaxed in the metropolitan counties on election night, and it is the reason that there should be a fair distribution across this state. every county should come very close to applying the same standards. this goes back to 1914 and another case against smmons. -- sammons. they always say, "absent fraud, let's stick to the will of the voters -- let's get to the will of the voters." this is the way minnesota has always been. >> counsel, i understand the claim is before us. we have a due process claim. >> we do. >> and an equal protection claim. >> we do, your honor. >> , among cities. do we have a claim before us

that challenges the statute itself? >> we do not. we did not challenge -- >> do we have one that directly challenges the application of the statute outside of the due process and equal protection? >> i am not sure exactly what you mean there, your honor. we challenge to the operation of the statute, its application. we did not challenge the basic statute on its face. >> but only to the extent that there are due process violations and equal protection violations? >> that is correct, your honor. >> and the reason i asked that is that there seems that there may be -- it is possible that there is statutory violations which did not rise to the level of constitutional violations? >> there may be, your honor, depending on how you look at these statutes. >> and my question is, are those claims in front of us? >> yes, and no. when we began this case, we argued it as an equal protection

case, and then, ultimately, after the of your 13, we joined the due process argument. -- after february 13. it has to be pretty much the same countywide, so we did that from the beginning. when the trial court determines that they were going to enforce a strict compliance statute on february 13, we took the position that you have changed the criteria from election night. to use the vernacular, you have changed the rules after the game has been played. the judges were applauding in substantial compliance statewide -- and let >> also, let me interrupt you, and i interested in your due process argument, and at least as i read, griffon, bristow, it seems to me that those cases are clearly distinguishable in the sense that in those cases, there was an announced procedure before

the election, and after the election, election officials changed the rules. here, we have a much difference situations -- situation. as i read these cases, do you contend that the election officials engaged in widespread misconduct by announcing an election procedure before the election, that there was reliance by the voters and then a material change after the election? >> no, your honor, but there was a material change after the election, because the election officials -- classic minnesota law, and then, is the trial court that changed the game after words and went back to the -- >> so your argument, it seems to me, is not that the election officials changed the rules, but you are saying that the panel violated due process by saying,

"we are going to have a mandatory requirement"? but how, at least under the federal cases, how do you get around the federal cases that rely on fraud, broad gauged or widespread misconduct, in this case where we have findings that there is no evidence of fraud or misconduct? i mean, is there not under normal standard of review the question -- the question is whether those findings are clearly erroneous, and at least as i look at findings of fact 125, and i looked at the conclusion of law 154, it seems that that fighting is clearly running is based on findings in the record, and i am wondering what that evidence is. .

>> they clearly excluded evidence of the ballots that did not meet their criteria set on february 13 from our evidence. we attempted to show that there was a defacto standard

compliance. we wanted to show, look at all of these ballots that came in minneapolis and st. louis county, that do not even come close to comport to the standards that you have adopted -- >> that ties to your offer of proof which begins sunday improperly accepted balance. i know you are eight -- -- which begins on improperly accepted ballots. i know you are a trial lawyer. it seems to me under the 20965 statute, the rules of evidence,

why is this offer of proof not inadequate in that we do not have admissible evidence that can be considered by this court in determining whether you have met your burden? >> i think we can go further than that. in 43 years of trying cases, i have never heard of a written offer of proof. we set out to -- >> have you ever heard of an offer of proof that is not on the record? >> not offhand. >> the offer of proof is the purpose of appellate practices. he put it on the record orly and there are some lawyers that put it offers of proof on the record orally. if you're going to make a distinction here, tell me what it is. >> we're going to do the ordinary thing and put the offers of proof in orally.

the court said dust -- >> i guess i do not have an issue as whether it was in writing or on the record, but i would like an answer to my question it. it seems to me that there were a material number of voters in various jurisdictions, and then you represent -- and then you referenced representatives on sample ballots. it seems to me the purpose of an offer of proof is to identify a name of a witness or the substance of the testimony so that the opponent can come in and respond if necessary to that testimony. here it seems like you're offering little more than an opening statement of in this case, in his theory of the case but no concrete evidence to

back it up. >> if you look at appendix 709, you will see pictures of the absentee ballot envelopes that were opened and counted in minneapolis and in st. louis county. we made that offer of proof because it was ruled irrelevant -- ruled irrelevant. >> i am bothered by your offer of proof. he said you will obtain testimony from a substantial and material number of minnesota county election officials. you said you were prohibited from doing that. then you say you could have called all 87 auditors and election clerks, but we purposely did not do that because we did not want to take the time. it tells me that you could have

-- but then let me talk about your list of sample ballots. i have gone through those. c 1016. they are basically just lists -- a list of names. then in paragraph four of the march to offer, you say the testimony of the material number of individual voters but no voters are identified. i really having a problem with that offer of proof. >> your honor, i can read from it. this is: 646, -- coleman 646. we do it identified the balance there. this is a picture of a ballot envelope that was opened and counted on election night. it makes it. of. it is the first one -- it makes

its points. -- point. that was opened and counted. that is part of our evidence. the hundreds of pages that follow, they are the actual ballots in lives that are opened and counted in minneapolis that blatantly violate the court's position on what the law is. it was our position -- >> let us assume for the moment that those ballots, which were counted on election night, should not have been counted. because they do not comply with the standard the panel -- >> we take the position that they should have been. >> if the panel is right on the

law as to what should and should not be counted, then they should not have been counted. so we have statutory violations on election night. how does that become a due process problem or an equal protection problem? >> it becomes an equal protection problem when you realized based on the evidence we have shown and is in this offer of proof and testimony that if people from around the state had all cast their ballots in minneapolis, there would be half as many rejected ballots. that is what the numbers show. >> as i understand, due process case law, the issue is whether there has been intentional and purposeful discrimination.

assuming that voters across the state have been treated differently, where is the intentional and purposeful discrimination? >> i do and not -- i believe in relation to the equal protection, there is that law. i do not believe it applies to voting issues. let in the due process area, you rely on the case from alabama. what the court talks about there, and i think this is consistent with other due process cases as well is voter reliance. the concern that the boater would help the hate differently

had the voter known to the rules were changed after the game was played as you say. that seems to be the driving principle. i am just wondering if you could articulate how that principle of a voter reliance placed out in this case. >> if i might respectfully disagree, i do not think the reliance issue is the driving issue. in a row against alabama, it had been between two witnesses on each absentee ballot. when they got into a recount, and this was a high election for the chief justice, when they got into the weekend, the circuit court started opening and counting ballots where there were no witnesses. they went over into the federal court in said, and you cannot do this. it has changed. it is not the same system anymore. the federal court went to the

11th circuit. the alabama supreme court had a decision. in the second time, the injunction remains prominent. what happened there was not based on alliance. there might have been some people who would have gone out and voted if they did not have to get two witnesses. i do not think that is the driving force. in this case, it would be ridiculous for me to argue that the people -- more people would have voted if they knew that in minneapolis, you did not have to get a registered voter to witness. i think that is not worth arguing to anybody. >> there are other courts who think differently. i look at the ninth circuit, griffith, i think it is the ninth circuit that summarizes

and said -- even looking at griffin and row, a general pattern emerges from all of these cases. mere fraud would not render an election invalid. two elements must be present. you have significant disenfranchisement as a result. you say -- there are a number of courts -- would you agree there are a number of course the tigger position are going a different direction? >> we have significant disenfranchisement, your honor. there is a geographical difference here. depending upon where you sleep, that depends upon whether your vote gets counted. that is correctable. >> again, assuming that the panel got it right on the law, do not we have a problem with

not so much disenfranchisement, but allowing the ballots which should not have been counted on election night -- we have a dilution problem do not we? >> it is worse than that. that says you can do it proportionate reduction which is a fictitious remedy anyway. you have the inability to say you got the most legally cast ballots. >> and no one has challenged those ballots -- >> are you speaking in the bell since? >> it seems to me that we do not have an issue before us as to the ballots that were counted on election night being improperly included, so they

should now be excluded. >> we are certainly not trying to get them excluded. >> but that is my point of. >> we are trying to get them to be used as a control for what the proper evaluation of the ballot is. that is only fair. >> that is a little bit of the cars in front of me speeding, they got away, why do i get the speeding ticket? >> they are not speeding, your honor. those ballots that got in substantially comply with the law and that is classic minnesota law. the elected officials in the metropolitan counties got it right. the election officials in the smaller counties got it wrong. the trial court got it from. this is not a strict compliance state. it is a statute -- it is a subsia