UPDATE on Coleman-Franken trial: Franken wins another round as 933 votes counted by State Canvassing Board are safe
Late Tuesday, in another legal defeat for the Coleman team, the three-judge panel denied their motion for a temporary restraining order.
In this matter, Coleman wanted the judges to halt the redaction of information on ballots counted by the State Canvassing Board. It could have allowed the Coleman side to attempt to "uncount" some votes.
The 933 votes counted by the canvassing board had been agreed to by both sides and the judges earlier this month. They seemed solidly in the recount total.
It was an issue that caused an intense argument in the court room last Friday.
The judges denied the TRO effort (PDF), citing voter privacy and the binding nature of the stipulation.
But earlier in the day...
As we move into the second half of Day 22 of this trial, the themes are clear. They were played out in vivid color this morning at the Al Franken-Norm Coleman election contest.
Norm Coleman’s side entered into evidence a collection of rejected absentee ballots from a variety of counties. The ballots were witnessed by people who, in many cases, weren’t registered voters -- or, at least, not at the time they witnessed a voter prepare and then seal his or her ballot.
But Al Franken’s lawyer, David Lillehaug, repeatedly showed a series of technical flaws in the ballots; that the witness wasn’t registered at the time of witnessing -- but, perhaps, later.
The Pioneer Press’ Rachel Stassen-Berger referred to this morning’s exchanges as Lillehaug’s “Perry Mason moment.”
But the bottom line was the themes and the result.
The themes:
- Franken is playing to the judges’ strict adherence to the state law when it comes to what’s a legal ballot.
- Coleman is repeatedly trying to convince the judges -- or, probably more accurately, appeals judges -- that different sorts of ballots are treated in different ways.
So far, Judges Elizabeth Hayden, Kurt Marben and Denise Reilly have swatted away that notion. But, from Coleman’s perspective, there’s always hope some other court might bite on the “equal protection” claim.
On the different treatment of similar ballots, Secretary of State elections director Gary Poser testified today that a witness had to be registered at the time of the witnessing.
But Beltrami County auditor Kay Mack said she thought the witness need only be registered by the time her county checked on the witness’s status.
Hair-splitting abounds in Courtroom 300.
The Coleman campaign continually points out that many counties and cities -- such as Minneapolis -- didn’t even check for whether some witnesses were registered. Thus, said Coleman lawyer Ben Ginsberg today, as he’s said for the past week: If some of these hairsplittingly illegal ballots are rejected, that will run counter to similar ballots that are already part of the election count -- such as ballots from, say, Franken-leaning Minneapolis.
The court can’t disallow “votes that are allowed routinely, commonly and frequently throughout the rest of the state,” Ginsberg said. “It means some voters' votes are counted and others are not counted, even though the reasoning is exactly the same.”
Update: (At the conclusion of the afternoon court session, Ginsberg distributed 19 ballots to reporters. He said they were examples of ballots of a similar kind that had been accepted by the State Canvassing Board and including in the final recount tally on Jan. 3.
(But they were the sorts of ballots that Poser said today should be rejected.
(Ginsberg called it “a real mess for the court.”
(Meanwhile, Franken lawyer Marc Elias noted that Poser and other state election officials “did a very good job” during the recount process. As potential Coleman ballots seemed to be evaporating today, Elias suggested the universe of Coleman’s potential ballots to, perhaps, be counted by the three judges is now fewer than 2,000.)
But back to Perry Mason, for those of you old enough to remember the character and Raymond Burr and those great piercing eyes.
With all due apologies to the Pioneer Press’ Stassen-Berger, the true “Perry Mason moment” came on one particular touché by Franken’s white-haired legal knight, Lillehaug.
On Feb. 13, a North Dakota State University student, who voted absentee for Coleman, testified. He initialed his absentee ballot application online with a computer mouse, rather than print it out and copy it so he could sign it in full.
The Coleman side wanted his ballot accepted. The Franken campaign said that computer initialing wasn’t valid.
Then, under questioning, Peter DeMuth, who is from Plymouth, said he didn’t copy the application and sign it because it cost money to do so.
Well -- and here’s the Perry Mason moment -- Lillehaug today, while questioning Poser, produced an affidavit showing that, in fact, NDSU students get 500 free copies per semester. And, thereafter, it’s 3 cents per additional page.
When Lillehaug produced that, Coleman lawyer Joe Friedberg threw up his hands and didn’t object.
The three judges, who have not smiled a whole bunch the past five weeks, all broke out in broad, teeth-baring grins.
Now, that was the Perry Mason moment.
Or was it Paul Drake’s investigative skills?
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Paul Drake - a symbol of hard-nosed investigative work - is ever present in the work of Franken's attorneys, and nearly alwyas absent from the Coleman legal effort. Tuesday was a perfect example of this. Joe Friedberg, a normally competent, some say famous, attorney, must be throwing up his hands (and uttering a few choice words)at his supporting attorneys and their so-called investigators for making him look like the the downcast, defeated opposing counsel depicted at the end of every Perry Mason episode.