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

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.