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Coleman-Franken trial notebook: Musings as we enter -- egads! -- Week Four

3 judge panel
AP Photo/Ben Garvin
Friday's ruling by, from left, Judges Marben, Reilly and Hayden narrowed the universe of rejected absentee ballots to be considered.

It was a scary weekend. I just couldn't get Judges Elizabeth Hayden, Kurt Marben and Denise Reilly off my mind.

It's not like they came to me in a vision, or anything spiritual or creepy like that. I just can't figure out why these three learned lawyers-turned-judges are having trouble making tough decisions that would speed up the trial.

Isn't that what judges do?

This trial, which enters Week Four today, is officially too long. The judges had their chance with their order Friday to make a more sweeping ruling, and one that made more sense.


Why, for instance, if they are so concerned about fraud and following the letter of the law, didn't they eliminate all signature mismatches as ballots to be considered?

Or, at the very least, order Norm Coleman's side to deliver to them, posthaste, all of the ballots in question for their inspection? Right now!

That could have eliminated, according to most estimates, about another 800 or so ballots to consider right there. We know that very few of those 800 are likely to stand up to cross-examination scrutiny. And we know that not all those votes, if opened, would be for Coleman.

How, now, will the trial proceed with such a squishy ruling?

Those discussions were going on behind closed doors in chambers this morning, beginning at 9 a.m. The trial resumes this afternoon at 1 p.m. with some Coleman witnesses.

But it's getting late here. Minnesota has one senator. Sen. Norm Coleman hasn't picked up one vote in this trial, as far as I can tell. Franken seems to have picked up at least 24.

This jury of three has to recognize that, yes, the whole state and nation are watching, but, no, that doesn't mean the three of them have to be robed deer in the legal headlights.

Minnesota Nice is fine and dandy. But this trial needs to be streamlined ever more. Remember, the Franken side has a case to put on, too. And more ballots for the judges to consider, perhaps more than the 771 ballots the Franken side mentioned in its original legal documents in this case.

How about a deadline, your honors? Incentives always work.

Ponder this: The Bruno Hauptmann/Lindbergh baby kidnapping trial, one the 20th century's "trials of the century," lasted five weeks.

The fabled Scopes Monkey Trial — about teaching evolution in the schools — made famous in the movie "Inherit the Wind" — took three weeks.

Should the Coleman-Franken case go on and on and on and on?

Speaking of which, there's still no word from the Minnesota Supreme Court on the other court case — whether Franken should be allowed to get a provisional election certificate that would help seat him in the U.S. Senate. That ruling should be coming any day.

The numbers game
No matter how you slice it, as that ballot universe shrinks, the numbers don't help Sen. Coleman. A bunch of analysts have crunched the numbers.

Here's a look — somewhat complex and, likely, partisan — at the Daily Kos.

And University of Minnesota political scientist Larry Jacobs told WCCO's Esme Murphy Sunday: "You look at the 2.9 million votes that were cast, 225-vote deficit is not a lot to catch up. But as the pool shrinks down to 3,500, maybe a bit less, it means that Norm Coleman's going to have to win 55 or 60 percent of those. That is a very tough climb. Plus, we've seen that the three judges came out and they said what is key here is the election law. So if an election official made a mistake, if there was a sticker covering where the voters had to sign their names, it doesn't matter, those ballots are going to be thrown out …"

Jacobs went on to opine that if it appears Coleman can't climb that deficit, financial support could dry up. Perhaps Coleman, who has already been mayor of St. Paul, might ponder running for governor if Gov. Tim Pawlenty doesn't. If that's in the back of Coleman's mind, pushing this legal case if defeat seemed apparent could backfire on Coleman's political aspirations, Jacobs said.

But there is another strategy at work here, some say.

It was reported in The Hill, the Capitol Hill news outlet last week. It reported that Republican Senators may just be stalling and playing defense to keep Franken and another Democratic vote away.

Zinger of the Week
It was just last Tuesday — seems like years ago — that MinnPost awarded it's "Zinger of the Day" trophy to Coleman's legal spokesman Ben Ginsberg for zapping the Democrats for passing the economic stimulus package without Franken.

But last Thursday, Franken lawyer Marc Elias one-upped Ginsberg.

For that, we are awarding Elias — trumpets, please — the "Zinger of the Week."

It occurred in that transitional moment between the pair's dueling news briefings, which occur after each day's court session. One takes to the microphones to describe what occurred in court — in his partisan view — and then the other, quickly, amicably, steps to the mics to say, "Well, no, that other guy is full of beans."

"Anything else?" Elias, the 6-foot-5 Democrat, asked the media corps at the completion of his Q-and-A with them. "Otherwise, I will let Mr. Ginsberg spin at such a remarkable rate that two things will happen. No. 1, there will be a little hole in the floor, like a divot. And, No. 2, he will actually start to levitate."

Amid the journalists' laughter, Ginsberg, the shorter and more Republican of the two, blushed … with pride?

Tidbits
The Washington Post took a look Sunday at the Minnesota Senate seat in limbo.

A reader or two wondered this: When the judges narrowed the scope of the allowable ballots Friday, did they create a major problem? That is, will we have to go back to the absentee ballots that were already counted and, essentially, un-count them if they were wrongly counted?

Hmmmmm …

A few things: The 933 votes counted by the State Canvassing Board are solid. Early in the trial, both sides stipulated their acceptance of them.

As for other absentee ballots that may have been accepted during the recount but might fall now into a barred category, how would we find them? How would we know who these voters voted for?

Once an absentee ballot is counted, it is placed in the stack with all ballots. There is no way to trace which absentee ballot came from which envelope.

Bush v. Gore
The Coleman side, especially outside of court, continues to mention the Bush v. Gore issue, that is, equal protection.

It raises the possibility, perhaps, of this case heading to U.S. federal court, although the Franken side believes the next step after this trial is the U.S. Senate, not the courts.

In any event, Coleman's side argues that because similar ballots were treated differently by different election official in different locales, there's been a clear violation of the U.S. Constitution. For the layperson, that sounds reasonable.

But a couple things continue to argue against that position.

The first is the three-judge panel's declaration that, unlike Florida in 2000, Minnesota had clear standards to count absentee ballots in 2008. (The standards may have been followed differently, but they surely existed.)

"[Coleman] repeatedly raised the specter of Bush v. Gore," the judges wrote on Feb. 3. "The Court questions the applicability of Bush v. Gore to the issues."

They went on to say, in legalese, that the U.S. Supreme Court noted the "absence of specific standards" in the Florida case.

But Hayden, Marben and Reilly wrote: "Unlike the situation in Florida in Bush v. Gore, the Minnesota Legislature has enacted a standard clearly and unambiguously enumerating the grounds upon which an absentee ballots may be accepted or rejected … The objective standards imposed on absentee ballots [by state law] distinguishes the election systems of Minnesota and Florida."

Besides, the Bush v. Gore case was not a precedent, the U.S. Supremes said in 2000.

As cautious as these three judges are, it's hard to imagine — from a layman's perspective — how any higher court, if it comes to that, will disagree with them. They have been soooo cautious.

Flip-flop
Imagine this: Norm Coleman — not Al Franken - is ahead by 225 votes and he is arguing that three judges should be as strict as possible when including voters' ballots.

Don't you think the leftwing and progressive blogosphere would be freaking out, claiming Coleman is trying to shut down the democratic process? Wouldn't there be demonstrators at the ramparts crying: "Norm's trying to steal the election!!"

But there's not been much of an outcry from the rightwing blogosphere, even as Franken's legal team is taking that strict-follow-the-law-to-its-letter position.

Could it be that Franken's legal position has checkmated the Republicans?

After all, restrictive election laws — such as the call for photo IDs of voters — has been a Republican position. Now, Franken's lawyers have embraced such a stance. How can the GOPers argue with it?

Last week, in legal arguments attempting to narrow the universe of ballots to be considered, Franken's lawyer Marc Elias cited the "Crawford v. Marion County" case in Indiana. It is, by most liberal accounts, an awful U.S. Supreme Court decision limiting the rights of voters.

But how can Republican and conservative stalwarts argue against Elias' point of view? It's their point of view in most cases.

Clearly, Elias was uncomfortable using Crawford as a sword to argue for limiting the ballot universe.

But, said Prof. Raleigh Levine, an elections law expert at William Mitchell College of Law: "I think it's the nature of an election contest. The parties are representing themselves, rather than the voters. They tend to make the arguments that are best suited to getting the results that they want. As it happens in this case, the standard Democratic position that you want to be as generous as possible with interpreting election laws is being taken by Coleman … It is ironic that that's the position Coleman is arguing, but it's also a very convenient position while Franken is saying stick to the letter of the law … It is ironic, but not surprising."

Or as Coleman lawyer Joe Friedberg, a blunt man who has never worked on an election contest before, said: "Both sides do want to win."

That's for sure.

Welcome to Week Four.

Jay Weiner can be reached at jweiner [at] minnpost [dot] com.

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Comments (18)

The senate term is winding down. I expect to start receiving fund raising letters for the 2014 senatorial campaign any day now.

Maybe what is needed here is for the judges to communicate a sense of urgency here to all the parties. I suggest night and weekend court sessions to start with. It's important that the right all Minnesotans have to two U.S. Senators be restored as soon as possible. The comfort of the parties in this litigation should not be allowed to stand in the way of that.

The judges are being so very cautious because they don't want to be seen as picking the winner.
Why isn't a runoff election between Coleman and Franken being given strong considered? It is the only way for "the People" to truly pick the winner now. Even a 2900 vote margin would only be 0.1% of the votes cast. There is no way our election or recount systems are that accurate... remember up to 0.5% triggers an automatic recount. Call the November election a draw and get on with a runoff election... please!!

Thanks Jay, great recap!

"Why isn't a runoff election between Coleman and Franken being given strong considered?"

Because there is no provision in law for it. The election was held last November, and now it's time to count the votes and figure out who got the most.

Yes, great recap.

Tony Spadafora asks
"Why isn't a runoff election between Coleman and Franken being given strong considered?"

Because that's not the law. The law says the canvassing board counts the votes, and if the election is contested it goes to the courts. We're in that phase now. The MN Lege could try to change the law, which would surely trigger another legal battle.

I agree with your premise that the current system is a little too sloppy for close elections. But I don't think there's a remedy for the current case - only for future elections, should the legislature choose to act.

I believe the judges have the option of calling for a runoff election.

That's not to say Franken won't challenge it at the next court level since he's the current leader by a very, very, very slim margin.

DFL legislators recently failed to institute a "commonsense" requirement for photo IDs to vote. I can't rent a DVD at Hollywood video without a photo ID when I don't have my membership card with me no matter how many people there "vouch" for me.

Hmmmmmmm... let's require a MN membership card to vote.

Recounts are how we find problems in our election systems. Were there absentee ballots in 1962, when the gubernatorial election went to a recount? I don't know, but I do know that many of the procedures we have came from precedents set in that recount. I think this is the first recount where absentees were numerous enough to make a difference. We learned about punchcards in Florida 2000, and selectively long lines in Ohio 2004. Now we're finding the hole in Minnesota's elections. Mark Ritchie has proposed reforms, but unfortunately they can't be enacted retroactively. Next recount, they won't be an issue.

"I can't rent a DVD at Hollywood video without a photo ID when I don't have my membership card with me no matter how many people there "vouch" for me."

I can't remember the last time a merchant asked me for ID. These days, when I use a credit card for a small purchase, they don't even want my signature. I am never carded in liquor stores or restaurants. At Hollywood Video, it seems, you don't have to produce an ID if you have a membership card.

It might be useful to ask why the trend is away from asking for identification, and whether the same reasoning should apply to voting.

An entertaining recapitulation, but I have to protest a couple points Jay made:

1. "Why, for instance, if they are so concerned about fraud and following the letter of the law, didn't they eliminate all signature mismatches as ballots to be considered?"

Signature mismatches must be amongst the fuzziest facts to decide - in some cases, purely subjective. Some of us, when writing when on an uncomfortable surface or in an uncomfortable position, scrawl something which may not look very much like our signature, but we could verify it was ours. So in these cases, I think the court does well to let the attorneys present rejections on signature they want to protest. They should consider these one at a time, not as a class.

2. "Or, at the very least, order Norm Coleman's side to deliver to them, posthaste, all of the ballots in question for their inspection? Right now!"

This wouldn't save any time at all. They would still have to take each one in turn, permit the attorneys to present testimony and argument as to why it should be counted. This is exactly what they are doing now, last I checked in on TheUptake.org.

3. "...will we have to go back to the absentee ballots that were already counted and, essentially, un-count them if they were wrongly counted?"

I don't think these are an issue before the court in the election contest trial. The court is considering only issues raised by the parties, and unless I'm missing something here, they are not going outside this boundary and raising new and additional issues to the contest under its own signature. Besides, as you point out, those votes are water over the dam - they have been counted and incorporated into the election result with no protest, and probably couldn't be retrieved in any case.

Sometimes I disagree with Mr. Weiner, but I like the way he writes!!

Jon, I don't carry a Hollywood Video membership card in my wallet. I've always only given my phone number until recently... Now they're requiring a photo ID... and no "vouching" is permitted... I normally pay cash for movie DVDs rentals.

Jay's observations about those 933 votes have me wondering whether the Coleman team made a major tactical blunder in stipulating to the 933. My recollection is that a controversy over those votes caused the court to sequentially number them to preserve the issues while blinding out the voter id. If Coleman had plead in the disjunctive that those votes were not lawfully cast and put them up first, the court would create the permissive categories and it would be katy bar the door for the inclusion of like votes among the other rejected ballots. I think they could have forced their equal protection position without having to raise a constitutional challenge to the election process.

If I were Tim Pawlenty, I'd be grinding my teeth as I watched this recount.

Surely Pawlenty would have been a much better candidate than Coleman. How could he miss? But Vice President Cheney jawboned him to leave the campaign to Coleman and stay out of the running for this same seat in 2002. So he let himself get talked out of it.

"DFL legislators recently failed to institute a "commonsense" requirement for photo IDs to vote."

What problem would this solve? In the election contest being discussed here, the issues are with absentee ballots. How do you enforce a photo ID check for absentee ballots?

Asking in-person voters for an ID has, in the past, been interpreted by the courts as a de-facto poll tax, because IDs cost money. Charging money for the privilege to vote is considered illegal, so if you want to enforce an ID requirement, you have to give voters free IDs. Adding that expense to the state's budget woes shouldn't be undertaken without a serious analysis of the benefit received for the cost. The last article I read on the subject said there have been something like 52 cases of voter fraud found in the last three or four nationwide elections, which amounts to a pitifully small number on a percentage basis. It sounds to me like the voter-ID movement is making a lot of noise about a theoretical problem that barely exists in reality. I don't see the benefit of spending more taxpayer dollars to solve a non-existent problem.

Brian, I was a poll challenger during the November '08 election. The system is too easy to beat. Ever hear of ACORN?

If you're that worried about the cost of photo IDs, I'm sure there's a non-profit willing to pay for them.

Do you realize one registered voter can "vouch" for up to 15 unregistered people who come to the polls with no ID whatsoever?

In Cleveland last year, some people testified about registering numerous times with ACORN representatives, who claimed their pay was based on the number of registrations collected.

Not requiring a photo ID for those registering to vote on election day makes no sense... PERIOD!

Given the makeup of the 8th Circuit Court of Appeals (the next level of judiciary beyond the
Minnesota Supreme Court), it is hard to imagine how these three judges could be too cautious.

As I recall, all but three of the fourteen federal appellate judges now on the court were appointed by Reagan, Bush Senior, or Junior.

It is extremely unlikely that the US Supreme Court
would venture again into where it never should have gone under the Rehnquist regime in 2000. All 5 of the justices voting to appoint Junior were themselves appointed by either Reagan or Bush Senior. The process and the result both stunk, and ruined the Court's credibility.

Which means that if this case were to go to the 8th Circuit, its decision would probably not be reviewed or overturned by the Supreme Court. They just would not want to touch it.

Thus, caution and care, and every token of due process, should be given now, in order to get this mess resolved as soon as possible. Much better to get it right the first time.

Hi Jay,
You are doing your usual great job of covering this trial, but it has become too dang painful for me to muse about for another second. Talk about your "Ambiguous Loss." Honestly, how can you stand it?

"Ponder this: The Bruno Hauptmann/Lindbergh baby kidnapping trial, one the 20th century's "trials of the century," lasted five weeks.

The fabled Scopes Monkey Trial — about teaching evolution in the schools — made famous in the movie "Inherit the Wind" — took three weeks."

Aside from the fact that (fortunately) we have different standards of due process than we did 70 years ago, in neither of the above cases was there serious doubt about the legal basis for the trials, or of the actions in question.
Hauptmann may not have been lynched, but public opinion was strongly against him.

In the case of Scopes, they never expected to win -- it was about publicizing a law they wanted changed.

So in neither case was there a serious challenge to the methodology of the trial; as opposed to Franken v Coleman where the major issue is defining exactly what the law requires.

What Minnesota needs for our elections, wherever more than two candidates are on the ballot, is IRV, Instant Runoff Voting.

I want government by majority, not mere plurality, and this Senate recount, whichever way it goes, gives us a US Senator for whom less than 50% of the voters voted.

Michelle Bachman was not favored by a majority, but she won for lack of IRV.

Gov. Pawlenty was not favored by a majority, but he won for lack of IRV.

Gov. Ventura was not favored by a majority, but he won for lack of IRV.

I realize that IRV may be equally likely to lead to a recount, but, unlike our present recount, it would definitely lead to election by majority.