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The Great Minnesota Recount, Day 1: Franken forces win legal round

By Jay Weiner | Wednesday, Nov. 19, 2008
Update: Ramsey County District Judge Dale Lindman ruled that certain data about rejected absentee ballots must be made public, a legal victory for Al Franken’s campaign.

Update: As the Great Minnesota Recount survived its first day, Ramsey County District Judge Dale Lindman ruled that certain data about rejected absentee ballots must be made public, a legal victory for Al Franken’s campaign.

Here’s the link to the full opinion on one contentious issue in the U.S. Senate race between Franken and incumbent Norm Coleman.

In a six-page opinion, Lindman ordered Ramsey County officials to make public and provide to both the Coleman and Franken campaigns:

• The names of voters who submitted absentee ballots;

• The envelopes of absentee ballots that haven’t been opened;

• The data compiled by election officials about the number of absentee votes and voters;

• Existing written information that explains why a ballot was rejected .

Lindman ordered Ramsey County election officials to turn over the information by the end of business today.

As to the ruling’s implications for Franken’s case before the State Canvassing Board, Lindman wrote: “With each passing hour, the Franken Campaign is irreparably harmed in its efforts to ensure that each valid vote is properly counted and to prepare for the procedures that will decide this election.”

Franken recount lawyer Marc Elias said in a post-decision briefing that Lindman’s opinion “is helpful to us” in relation to the Canvassing Board.

For his part, Coleman attorney Fritz Knaak wasn’t reeling from the decision. He said Wednesday afternoon that he and the Coleman campaign are focused on the recount and reported it was going “exceptionally well.”

Knaak called the Data Practices case and Lindman ruling a “side issue” and “not of any particular relevance to the count itself.”

But, clearly Elias will use Lindman’s opinion to urge the State Canvassing Board to allow rejected absentee ballots to be part of the count. That would run counter to an opinion offered earlier this week by the Minnesota attorney general’s office, but Lindman’s words – “irreparable harm” — are sure to be heard over and over again.

In Knaak’s view, the impetus behind Franken’s information-gathering is to challenge the election, if and when – in Knaak’s view – Coleman wins the recount.

Elias has said the information-gathering is to get the “fullest and fairest recount.”

Earlier, during a 35-minute hearing this morning, Lindman heard an argument from Franken campaign lawyer David Lillehaug that the names and addresses of voters whose absentee ballots were rejected should be made available to the Franken side.

Ramsey County was just one among most of Minnesota’s 87 counties that hadn’t supplied such data to the Franken campaign. The county cited privacy concerns and its interpretation of state law that such data weren’t required to be public.

Lillehaug saw the law differently. In the end, so did the judge.

Fourteen counties had previously supplied the names, addresses and reasons for rejection, Knaak told the judge during the hearing.

In some ways, the Ramsey County case is considered a test case; Lindman’s ruling presumably opens the door for other counties to comply.

The Franken campaign was poised to contact other counties and seek their data.

The Coleman campaign released a letter today that it sent to the state’s county auditors asking for the same data that Franken requests.

Knaak said minutes after the hearing that the Coleman campaign wouldn’t use any voter data it gathers during the recount process.

“We’re not about to be in the business of pounding on doors,” he said.

Of the Franken campaign, he asserted: “They’re going to pound on people’s doors and ask, ‘How did you vote?’ “

Franken’s campaign refused to explain exactly how they’d use the information …until they get their hands on it.

In his questioning of Lillehaug and Assistant Ramsey County Attorney Darwin Lookingbill, Lindman pressed them on a key balancing act raised by the legal issue: the privacy of each voter’s choice versus a voter being disenfranchised.

That is, it’s clear that the Franken campaign — when it gets the names of those who cast rejected ballots — will contact those voters. That could lead to them asking a voter how he or she voted.

On the other hand, Franken’s campaign could aid voters – for either candidate — in getting their vote to count after it was initially rejected … perhaps by an innocent administrative error.

Lindman told the lawyers that while he respected the privacy of individual voters, “It’s also the transparency of the process” that’s at stake.

And the judge said his decision today wasn’t going to  be based on how the information will be used.

“What they do with it [is] subject to an action on another day,” he said.

Undoubtedly, there will be legal action some other day soon.

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