Coleman-Franken election contest’s first hearing: same game, higher ante, higher stakes

The gavel banged.
 
Pennington County District Court Judge Kurt Marben, looking remarkably neat and accountant-like, read from a piece of paper.
 
“ ‘In the matter of the contest of General Election held on November 4, 2008, for the purpose of electing a United States Senator from the State of Minnesota, Cullen Sheehan and Norm Coleman, contestants, versus Al Franken, contestee,’ is on the calendar.”
 
And with that the first pre-trial hearing of the Coleman-Franken trial began. Another piece of the U.S. Senate puzzle moved into place.

Marben sat on a high-backed brown leather chair in the courtroom normally used by Minnesota’s Supreme Court justices. To his right was Stearns County District Court Judge Elizabeth Hayden. To his left was Hennepin County District Court Judge Denise Reilly.

The judges gazed out onto two counsel tables filled with high-priced lawyers from Washington, D.C., Seattle and the Twin Cities.
 
From the nice suits alone, Marben, who served as the chief judge today, had to know he wasn’t in Thief River Falls anymore.
 
Indeed, there were enough attorneys to turn the lovely oak-trimmed courtroom, with the long chandelier hanging from the skylight 50 feet above, into a dandy basketball court.
 
Franken had five on his side. Coleman had a grand total of six lawyers, including a newly acquired media point guard named Ben Ginsberg.
 
More on Mr. Ginsberg later.  But his arrival in our fair little town is a signal that we’re in crunch time for the U.S. Senate seat, what with Senate Majority Leader Harry Reid suggesting he’s ready to seat Franken and with Franken in Washington preparing for the moment he can get to work.
 
Lots of onlookers and then ...
So, the scene was set, with three rows of courtroom pews filled – at least at the start of the 70-minute hearing -- with journalists, campaign staffs, a school class and a few hangers-on.
 
Not to spoil the ending, but not a whole lot happened or was said that wasn’t expected.
 
Today’s hearing was a Franken effort to completely dismiss the Coleman contest effort or, at the very least, narrow all that Coleman’s side wants to do.
 
Coleman’s side wants to, virtually, redo the recount as it pertains to what they believe are wrongly rejected absentee ballots, maybe as many as 12,000 of them.
 
The three judges took what was at issue under advisement. Another hearing, which could further narrow the issues, is set for Friday.
 
Assuming Marben, Hayden and Reilly don’t toss out the case before then, the full trial is set to begin Monday.
 
The Franken side today was represented by David J. Burman, a Seattle-based partner of Franken’s lead lawyer Marc Elias. In a deliberate, almost professorial tone, Burman asserted that Coleman is flaunting state law by seeking a complete do-over of the recount, and fishing for votes that have already been counted or rejected by either elections officials or the State Canvassing Board after “meticulous … careful … excruciating” examination.
 
“At some point, Minnesota has to say, ‘It’s done the best job human beings can do,’ ” in counting, Burman said.
 
He also said that Coleman’s allegations of illegalities and irregularities are non-specific and that this three-judge panel doesn’t have jurisdiction over any alleged illegalities.
 
Burman represented Washington Gov. Christine Gregoire in her 2005 recount case. She won. He won. He’s been here. He’s done that.
 
The Coleman side had Minneapolis-based James Langdon speaking for it today.
 
He was a bit folksier and attack-doggy than Burman, but, then, Coleman is behind by 225 votes today. He told the judges what Coleman’s other lawyers – Fritz Knaak and Tony Trimble – have been saying for weeks: There are votes out there that have been rejected wrongly or counted twice or lost or found since Election Day.
 
Coleman campaign says time is right for full trial
During the Canvassing Board process, Coleman was told that the board couldn’t take evidence. The board told Coleman to take his grievances to an election contest. The Coleman side says it needs a full-blown trial to present the evidence.
 
“Now is the time these claims should be addressed,” Langdon told the judges, and to make sure that all votes that were “legally cast” are counted. And he charged that Burman was suggesting “your court is not a court,” but rather a rubber stamp of the Canvassing Board’s actions.
 
So far, Coleman’s specific evidence on duplicate ballots and on specific rejected absentee ballots has been wanting. Judge Hayden wondered aloud about that.
 
Also, so far, as hardworking and diligent as the Coleman legal team has been, it hasn’t had too many wins in court either. Because of that, it’s been whacked by some conservative blogs.

Drum rolls please …
 
Enter Ben Ginsberg, a new personality in the mix today, a huge personality.
 
Ginsberg is as big a hitter and as powerful and quotable a Republican lawyer/spinmeister as you get.
 
For Democrats, he’s a sort of traveling Republican bogeyman, moving from one tough GOP cause to another, charmingly stabbing here and poking there.
 
He was called the Democrats’ “prince of darkness” in a blog item by the Pioneer Press’ Rachel Stassen-Berger last year.
 
Ginsberg resume wide-ranging
Here, briefly, is Ginsberg’s resume: former counsel to the Republican National Committee, national counsel to Bush-Cheney campaign in 2000 and 2004. Major character in the 2000 Florida recount. (His role in the HBO film “Recount,” was played by actor Bob Balaban.) He was the legal adviser to the Swift Boat Veterans for Truth during the 2004 election attack on Democratic candidate John Kerry.
 
Oh, it’s not that the Dems are afraid of him, although he’s good at what he does. They just know his M.O.
 
 “[The Coleman team] needed a chocolate maker,  and they brought in Willy Wonka,” one Democrat observer, with a twinkle in his voice, told MinnPost this afternoon.
 
It’s not always sweet, but Ginsberg manufactures crisp verbal images and provides spiffy partisan analysis of a major-league order. With the national media turning its attention back to Minnesota, Ginsberg will be a familiar CNN pundit to call on.
 
To wit, in a conference call today after the hearing, Ginsberg went on the offensive, charging the Franken legal team with wanting to “short-circuit Minnesota law, Minnesota processes and Minnesota votes.”
 
He trashed the Franken side for “boldly asserted legal sophistries.” He said if the court allows a re-examination of absentee ballots, it will mean “a significant increase of votes for Senator Coleman.”
 
OK, fine. He gives good quote. But why now?
 
Well, Ginsberg said, he’s not new to the recount or Coleman. He said he’s represented Coleman over the past six years as election law counsel.
 
He said Coleman’s other lawyers will have their hands full during the trial and he has been brought to Minnesota to talk, mostly, with the media.
 
“I have been brought in apparently as the pretty face,” said the bearded, bald, big-eared Mr. Ginsberg.
 
And then he added, speaking of Franken’s case in the upcoming trial: “It is something like a sand castle waiting for the next tide to come in, and what they’re trying to do is to buck the case to the United States Senate … It’s a fairly crass partisan maneuver on their part. It really is kind of an insult to Minnesota law and Minnesota courts.”
 
Now, Ginsberg is going to get a run for his money with Marc Elias on the other side. Franken’s top lawyer Elias – who essentially represents all the Democratic senators in the U.S. Capitol -- is just as powerful in Washington Democratic Party circles as Ginsberg is with the GOP.
 
Elias can produce amusing and cutting comments quotes at a major-league level, too. And has been for the past two-and-a-half months, getting a huge lead in the standings on Ginsberg.
 
In talking of Coleman’s effort to count somewhere between 3,500 and 12,000 absentee ballots again – the number has been a moving target – Elias said today, “Their path to victory has always involved a dollar and a dream, like buying a lottery ticket. They have to hope to find some category of ballots and hope when they open that category of ballots, they find some cache of votes that will allow them to make up what is now a very comfortable lead of 225 votes.”
 
It’s a lead the Coleman team wants to use the courts to bite into and savor … sort of like a huge piece of chocolate.

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