>> the substantial majority of election judges allow the in ballots that satisfy this essential compliance standard -- your position on brief and before the trial court is that most election judges, most ballots were allowed in based on aesops -- substantial compliance standard. the district court -- panel here says you have not sustained your burden of proof on that. they questioned some isolated proves, but that it was not this far ranging practice that you alleged before the court. how are we to say the panel here abused its discretion in making that conclusion? >> we did not say most did that.

i do not think we said most. if you add up an amount of the election judges from around the state, you will find an overall substantial compliance situation. then the court said it what you want to show us about what was done -- done on election night was irrelevant. >> i am quoting from your brief on page 39. the overwhelming majority of minnesota county assume various presumptions meaning they do not strictly comply with the statute. they apply these various presumptions. i am troubled by that very broad statement that the overwhelming majority of minnesota -- where in the record is their evidentiary support for the year -- for your assumption? >> you can read the complete testimony from the biggest

political subdivision. he says no application, our fault, we let it in. >> i had a stand that, but where is the evidence from the overwhelming majority of the counties and cities? >> every order to recall as i recall made exceptions. i think we only called about 26 or 27. >> we have 87 counties. we are reviewing the work of a panel of the three trial court judges. they took evidence. where is the evidence that you called -- you did not even call witnesses from a majority of minnesota's counties. you are asking us to presume best -- based on testimony from a sampling of counties that that practice as applied to the majority of the counties. >> the evidence here even from the secretary of state is for instance. the counties did not check to see if the witnesses were registered. that is the evidence in the case. there are only six or seven that did. that resulted in thousands of

ballots presumptively -- you have 180 people kicked out in little carver county because when mrs. were not registered, and you have none in minneapolis and none in st. louis county. you could presume that the people in each county are as smart as each other. all you have to do is extrapolate. they did that in bush again score when they compared the relaxed standard in brouwer county with the and relax county -- standard in palm beach county. the population should get equal. when plymouth kicks out 75 for signature mismatching in 31 counties in the state kicked out nunn, we have made our case. you cannot make it any better than that. >> good time has expired. >> i would like to frame the questions of that it can be answered. i am still having problem with

you saying we are a substantial compliance state. there is language i do not think you can overcome. i will give language from one source. it says if the stage -- statute or directory the argument would be of some force. it has no application here because the statute is mandatory. the court goes on to express concern about lowering the bar altogether because of a flaw in it. the absentee statue is different ♪ from the coming electio law and -- the absence to the statute is different from the, the election law. -- the absentee statute is different from the common election law.

>> you may proceed. >> thank you. i am here on behalf of al franken. i would like to note one of the most significant findings of fact made by the trial court. >> 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 in rebuttal. to the extent that the united states senate will make the ultimate decision here and to the extent that they do not have to follow what we do, how do we issue an opinion without it being an advisory opinion? do we have authority to do anything here? >> your honor, this question was raised with the district court as to whether the court had jurisdiction. the court found that the court had jurisdiction to determine who received the most lawful votes. even though the senate has its jurisdiction to decide who gets seated.

the supreme court adopted it under 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 its jurisdiction. i believe the court has jurisdiction to proceed. it is no secret that i stood here once before suggesting that senate business proceed in the interim. i do not think there was a suggestion in that opinion that there was a complete lack of jurisdiction. i think is such a finding would have been inconsistent with the court's ruling in the other case. >> the question here is kobach the most legally kasparov's votes? -- the most legal cast votes?

what i want to know is your position on the merits of paragraph 16 of contestants offer of proof. in that offer of proof, specifically c1013. you look at the first of a look in there and it appears that the that was not a proper absentee ballot. what i want to know is if we are supposed to decide who got the most legally cast votes and there is evidence that suggests illegally cast ballots were accepted -- we cannot tell who

theyvoted for, but how can we tell who got the most legal cast votes? >> this is part of the problem and frustration with the appellate case. we have a balanced envelope. we have a copy. we know that that person voted. we do not know there was a different type of situation involved. we do not know what the texans are some sense as are other than a copy of the envelope. there is perhaps no fact that is more for the established by no witnesses than a phrase that was used by one of the first witnesses from the secretary of state's office which is every ballot tells a story. that was a phrase that resonated through this very courtroom day after day, witness after witness. you cannot do as apollo's try to do in the court below -- to take a brought bosc -- broad brushes. there are many ways to cast a ballot. there are many ways to correct them. being offered a written offer of proof, the first of which

came -- >> your point of i think is it was his burden to prove it and he did not prove it. he cannot come up here and speculate. >> that is correct. the finding of fact that i wish to call to this court's attention which goes to this point is that of which they showed of all the rejected ballots, the party showed 650 of all of the dallas presented to this court. that is voter registration.

that is not all the other requirements that appellants now have complaints about. this is the most fundamental requirement which is that the person be registered. 351 were opened and counted of that number. so 299. the margin separating the two canada's is 312. even if every one of those 300 or so ballots -- it does not mean the certificate was properly completed, but at least registered, even if all 300 of these were for the appellant and even if all 300 met all of the other requirements, it would still be impossible for them to make the difference. since the jurisdiction of this

court is to determine who received the most wobbly pass did ballots, the question answers itself. mr. franken received more legally cast ballots then norm coleman. >> were any illegally cast absentee ballots counted and included in the vote toal? >> there is nothing in the record identifying a specific ballot that was in the total. i think it is fair to say that in every election in every state there is some ballot somewhere where a felon voted and it was not picked up where someone was not registered and got around the table. where some irregularities took place and it was not caught. that has never been the standard. >> we are talking here about the universe of minnesota absentee ballots. you have a broad lens. you are looking at the whole

universe you see. there may be some averaged star systems are galaxies. what he is saying is that look at this aberrant -- this is proof that the universe is chaos. they have shown me that. they have shown me some chaos in this universe. tell me why they have not shown us enough that we should not implicate due process and equal protection here -- because we cannot see the whole universe, but they have shown us enough to show us there is a problem? >> i have several answers. the trial court correctly noted

that the time to challenge an unlawful gigot is before it is separated from its envelope. it is at the time the ballot is delivered to the present. >> the problem i have with that is that many counted by the absentee ballot boards in the metro area, i did not see anything in the statute that would provide an opportunity for norm coleman to challenge that board. i do not see any indication that he would have received notice or any candidate would have received notice. it seems to me that we have those categories that there was no opportunity for him to object to and we are now left with what is left on the return envelope at the precinct for which he could have under the statutes objected to just like an in-person ballot. am i correct? >> i think you answered the

question to the last statement. he could have objected to those at the precinct. >> there are some that would have been on the outside of the envelope that was not part of what went to the precinct that he would have lost the opportunity to object to. >> i believe the outside envelope goes to the precinct along with the ballots. the outside envelope is reviewed to determine if it is accepted or rejected. >> 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 seem 1013 that do not have the simitar a voter. it seems like that is a

significant requirement. is there an innocent explanation? >> there may have been a replacement ballots. we do not know. we stand here being told there are some 4400 ballots. this court ought to go back and take an amalgam of practices in 87 counties. the court ought to set a standard based on what the amalgam of practices was and determine which of the some 4400 ballots that were presumably cherry picked by the

counsel. >> what is the answer to my question? is the lack of a signature of voter -- asvoter signature is base-a tory requirement. >> it is indeed. -- a voter signature is a statutory requirement. >> it is indeed. but when an example could be that they were unable to write because they were handicapped. there are story behind these ballots -- reasons why some more accepted or rejected. i specifically point this court to the court's ruling that this argument was waves for failing to properly plead it an appealing to properly identify these ballots as in response to a discovery request. these exact questions are questions that we asked before

trial. which ballots are they? so we can prepare for trial. >> let me explore that with you for just a minute. i see findings from the panel that they were not in answer to -- but going to the statute, it does not say a pleading has to contain legal theories like due process and equal protection. it does not say that in an answer you have to police all affirmative defenses. you did not plea waivers here. if we follow your waiver argument, you did not plea waiver so you waive the right to plea waiver. >> your honor, there are -- our concern was not there to plead due process but failed to plead the court protection. do not tell us 4400. which of the ballot so we can do what we need to do to

prepare for trial so we can look at those ballots and find out the answers to the very questions you ask me. if every ballot tells a story, what is the story behind this ballots? we never received an answer to this question. it was not until the close of the case that the ballots were identified. then it was titillate. the waiver i believe -- but was too late. there was a due process claim were equal protection is planned and during oral arguments, it was uttered as part of the closing argument. what ever notices are required of a claim of the due process violation, it must come before the contestants close their case and argue.

>> let me switch subjects here a little bit. the equal protection in due process plans, what standard do we look to in reviewing those claims? >> i believe, your honor, correctly identified that if you look at both the federal constitutional law and the state constitutional law that absent a case that involved a burden on a particular case -- there is no allegation in this case that we have a burden or intentional discrimination or a burden on suspect classifications that absent intentional -- intentional and purposeful discrimination or arbitrary treatment that is so extraordinary that it undermines the fundamental fairness then there is no

violation. >> that is not the standard that we applied. >> i believe in one case, the court noted the holding of one. they noted the supreme court's standard in mcdonald of business scrutiny. it adopted something that appears to be arbitrary or capricious in basis. it was a low level of scrutiny. whether you look at that four other cases which are more of the sliding scale, the administration which is what we are talking a back receives the highest deference by a court -- the states must be able to write laws about how ballots are to be sent out and received and

processed and counted. if you hold that up to heightened scrutiny, then you will put a cent in the gear of allowing an election to take place. >> you agree that changing the rules after an election is unfair. >> indeed. we need to hold the election and create what all of the counties did. we need to create an amount of debt and apply that to the next election. -- we need to create an amalgam of that and apply that to the next election. it has been clear that when it comes to absentee -- the requirements for absentee voting is there are monetary requirements -- mandatory requirements -- >> that is a question i asked contestants to address in rebuttal.

when you cite that, what is your authority that it is mandatory and in fact the change would be to dip a substantial compliance instead of strict compliance? >> i will put you to the city of glen cope which they said the provisions of election laws require access to be done. he is personally at fault if he violates the because the laws are mandatory. it is not the fault of the election officials. such provisions prescribe mandatory conditions. i can't show you other cases where the quote extensively from -- i can show you other cases where the quote extensively from this. with respect to absentee voting

there is no doubt regarding the mandatory factor of the situation. if you look at the facts of one case, you are stuck that it stands for the proposition for a statute of requires proper witnesses for absentee ballots cannot be lowered by the state court after the election has taken place. if this court is concerned about a potential violation of this sort, the easiest way is to apply the statute as the trial court did as it is written, not better written by the legislature. i would add an observation on

these. minnesota is one of a handful of states that is remarkable for blowing the barriers taken place. it is one of the most friendly and progressive states. that was the legislative judgment that the state made. every time it made that judgment, it could have said we will follow the lead of oregon or washington. they chose not to do so. that was a conscious choice. if you look at the crawford decision from the u.s. supreme court would they upheld an indiana statute, they identified the legitimate interest in state has to prevent fraud -- >> can i go back to one case. we said there were 172. by treating similarly situated voters differently was no rational explanation, the statute violates equal protection guarantees. that is the argument that is made here. similarly situate absentee voters are being treated differently. you would articulate the rational explanation for that as what? >> as the need for the countess

in the precincts to get the flexibility to allow elections to work. in pine county where there may be one street called maine, in minneapolis, there may be 20 streets that have bad name. you need -- you may need a different standard as to whether it is as main street, main avenue, or main boulevard. >> is there evidence in the record to support this rational explanation that you are offering now? >> there is indeed. there is differences in technology, resources --

disruptions from happening. new voters are getting registered. make sure they are processing these ballots. >> it sounds like substantial compliance which is exactly the opposite of what you're arguing. >> it is not substantial compliance. the requirements are mandatory in all respects. you have one democrat and one republican. they might use different pieces of evidence to meet their need to be satisfied. it does not mean the law is not the same everywhere. the requirement that the witness be registered, that is the law. in different counties, there will be different practical considerations to how the

election judge satisfied themselves that they are registered. in some counties, that will satisfy themselves by looking up. in some counties, but is either not available to them because they do not have the technology available or would simply be impractical. that does not make a stand or rise to an equal protection violation. in that regard, i would point to the court's discussion, contrasting that. i apologize if i mispronounced the name of that case. this court found that the

officials in charge of the issue is not in disregard of laws, but such a striking detraction from the law. that is because the court said that an absence of all effort is equivalent to bad faith. if you look at the history of the cases in this state, the garden variety differences between counties and the garden variety problems that crop up in every election did not lead to constitutional or statutory problem. his only were you have this complete absence of any standard. this court has held that there is an injury. that is completely with