Coleman-Franken trial: After Week One, questions about ‘the universe’: How big is it, and when will the judges decide?

The three judge panel

AP Photo/Ben Garvin
Lawyers approach the three-judge panel before Thursday’s hearing in the Senate election recount trial. From the left are Judges Kurt Marben, Denise Reilly and Elizabeth Hayden.

Sometime soon there will be a big bang.

It may come after the thwack of a gavel against an oak desk in Courtroom 300. It more likely could arrive in the silence of an email directing lawyers to a document in which the political fates of Al Franken and Norm Coleman will rest.

It will be an order of great power from three previously little-known judges who, for now, are the most important jurists in Minnesota.

The order will inform Minnesotans of the size of a mindboggling concept that could well determine the outcome of the 2008 U.S. Senate election.

The concept: “The Universe.”

The bang: How large a universe of uncounted votes will Judges Elizabeth Hayden, Kurt Marben and Denise Reilly allow to be counted to bring this election contest trial to conclusion?

‘Universe’ at center of attention
Other than the words “absentee ballots,” “your honor,” and “objection,” “universe” may have been the most uttered word by Norm Coleman’s and Al Franken’s lawyers during Week One of the Senate election contest trial.

After a week of testimony, a layperson can conclude a few things about where Coleman’s case stands – and remember he’s got to prove that the 225-vote margin Franken holds is not correct.

Coleman said it again today when he told reporters: “The number 225 is irrelevant … This race is not over.” He’s not giving up, that’s for sure.

But here’s what an average guy knows after Week One: Some votes weren’t counted that should have been; election officials in Minnesota did, generally, a fine job and, generally, followed the rules as laid down by state law or a Supreme Court decision in December; mistakes were made, but how many?

Coleman’s side – more than Franken’s – has shifted its position on the inclusion of absentee ballots,  but it always wanted the issue to be raised in this contest forum. The task of examining and, maybe, recounting all 11,000 absentee ballots that Coleman wants likely would take weeks, a time frame these judges don’t have.

So, how many votes are in play?

A handful? That’s what Coleman lawyers said was the universe of improperly rejected absentee ballots way back when in November?

The numbers game
Up to 1,600? That was a round number Secretary of State Mark Ritchie suggested was the group of absentee ballots that may have been wrongly rejected by election officials.

About 1,000 to 1,300? That was Franken lawyer Marc Elias’ initial prediction in mid-November.

Or 654? That’s how many Coleman’s side have said were in question when it filed its election contest motion on Jan. 6.

Would you believe 11,000 or 12,000? That’s the number that Coleman’s team now wants the judges to consider.

(If they took one minute to analyze each absentee envelope, it would take about 23 days of eight-hours of work. And one minute isn’t enough to analyze and count.)

That’s all of the absentee ballots that county officials may have wrongly rejected, the Coleman side says.

That the number is forever changing was made clear when Coleman lawyer James Langdon told the judges during a pre-trial hearing a week ago: “The universe isn’t done yet.”

This moving target is a notion that the Franken side disputes with much ferocity, in its legal documents and its public statements.

Franken lawyer Marc Elias, whose displays of disbelief at the Coleman side’s shifting are constant, told reporters the other day:

“For any of you who thought that it was possible that the universe has contracted down to 4,500 or 5,500 [votes], it is fair to say that the universe has continued its expansion.”

The universe? What’s a physics prof say?

Wait a second. It’s time to consult with an expert. We called Shaul Hanany , a University of Minnesota professor of physics.

Professor Hanany specializes in … you guessed it, the universe.

And he wants to tell lawyers for both sides that, yes, the universe as a whole does, in fact, expand, “but nothing within our galaxy or solar system either expands or contracts.” So, the playing field “of the Minnesota recount is relatively stable because of the forces of gravity.”

We may be talking about 11,000 votes being in dispute for nearly three months now. But the real universe is 18 billion light years big and 13.7 billion years old. (Presumably, this trial won’t last that long.)

But here was Hanany’s major analysis of the recount, and he is nonpartisan: “The only meaningful issue is how large is the part of the universe we can see. Beyond what we can see, we don’t know.”

Heavy stuff.

But, in his view, it seems as if the Coleman side wants “another experiment.” Because, to this point, it looks as if the universe we’ve seen of this election is what’s been determined already.

In the alternative, the professor recommended the lawyers for both sides go back to physics graduate school.

Waiting for a big shoe to drop
But we digress amid the uncertainty of it all. And we digress because everyone is waiting for the mega-shoe to drop.

The Coleman side believes it’s made its case: the Coleman lawyers are trying to show in a few examples that there has been a general neglect of thousands of voters.

But the Franken side has shown – and county officials have backed them – that the mistakes are rare, not massive.

“At some point, we may have made our point,” said Coleman lawyer Joe Friedberg. “We may have made it now, but we can’t just look up at the judges and say, ‘How are we doin’?”

Yes, Friedberg said, both sides eagerly want a ruling from the judges.

“And they know we do and they know it’s a major, major issue in this case,” he said. “I think it’s a difficult issue for them.”

Indeed, these three judges, in their black robes, with their best wisdom, have to get their arms around the universe of ballots that should be re-examined.

When they do – whether it’s 654 votes or 771 votes or 4,549 votes or 11,000 or 12,000 votes — all hell will break loose.

If it’s 654 – the number the Coleman side once said was the universe – Coleman can’t win the recount. No way. One of his lawyers last month said of those 654 absentee ballots to be rechecked, perhaps fewer than 50 might be accepted.

Even if all 50 went to Coleman, that won’t undo his 225 deficit. Assume even that all 654 were actually counted. Coleman would have to win that group 440-214, assuming all the votes went to either Coleman or Franken and not to third party candidate Dean Barkley or others.

Will the judges narrow the universe by specific categories of rejection? Judge Marben has hinted in a couple of questions that he has an interest in signature verification.

Will they narrow the universe by picking one of the operative numbers out there? Judge Reilly today expertly asked a lawyer about “the 1,346”? That’s the number of rejected absentee ballots that came to the State Canvassing Board to count. Is she focused on that?

They are, clearly, cautious judges, but they know the narrowing of the universe is a political decision, too.

Today, when the legal work was over, the two sides met with the judges in chambers to work out scheduling for next week. Friedberg, the sly, friendly fellow with the everyman approach to questioning witnesses, walked out of the meeting first.

He walked past the assembled gaggle of reporters awaiting its daily nourishment of end-of-the-day quotes.

“We settled,” Friedberg said, as he wandered by. “Barkley’s going to the Senate.”

Now, that would truly expand the universe, wouldn’t it?

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

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Comments (3)

  1. Submitted by Larry Wigley on 01/30/2009 - 06:58 pm.


    Great article! It brings to mind the old Monty Python song, “The Galaxy”. I listen to Clint Black’s version. The last lines say it all:

    …Our galaxy itself contains a hundred billion stars.
    It’s a 100,000 light years side to side
    It bulges in the middle 16,000 light years thick,
    But out by us it’s just 3,000 light years wide.
    We’re 30,000 light years from galactic central point.
    We go round every 200,000,000 years.
    And our galaxy is only one of millions of billions
    In this amazing and expanding universe.

    Our universe itself keeps on expanding and expanding
    In all of the directions it can whiz
    As fast as it can go, the speed of light you know, 12,000,000 miles a minute,
    And that’s the fastest speed there is!
    So, remember when you’re feeling very small and insecure
    How amazingly unlikely is your birth.
    And pray that there’s intelligent life somewhere up in space,
    ‘cause I’m afraid that we’ve been cheated here on earth.

  2. Submitted by david maeda on 01/30/2009 - 10:18 pm.

    thank you jay for your continued outstanding coverage of the 2008 senate election. your reporting has been far and away the best i’ve seen speaking as an election official.

  3. Submitted by Roy Lewis on 01/31/2009 - 02:20 pm.

    Having whiled away a good part of last week watching ‘s excellent coverage of this trial, and reading the streaming comments on the same blog, thank you, Jay, for your “spot on” story. In about 1300 words you summarized the week’s events in an accurate and entertaining way, saving your readers hours and hours of lawyering, “Poopycock” and “Jibber-Jabber”!

    On the other hand, the testimony of Mr. Gilbmann, MN Deputy Secretary of State, and the diligent efforts and skills of his co-workers, demonstrated exemplary public service to the citizens of Minnesota!

    Keep up the good work Jan, as you and other tell the story of this historic election!
    RL Atlanta, GA

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