After all the cacophonous confusion, all the soaring and stinging rhetoric, the blizzard of legal filings, the premature claims of victory, a super-tight count and a streamed, worldwide-watched recount, Minnesota’s first Trial of the 21st Century is about to come to order.
In the dark-oak-trimmed courtroom usually inhabited by the state Supreme Court, the election contest of Norm Coleman vs. Al Franken will begin Monday.
All take a deep breath. Be seated. Pour yourself a beverage.
Assume that after nearly two years of a notably uncivil U.S. Senate campaign, that come Monday, we will begin to see the unfolding of up to three weeks of an atypical civil trial.
“Start with the fact that there’s no jury and there are three judges sitting up there,” said super-lawyer Joe Friedberg, who will lead the trial team for Norm Coleman. “It will look unusual. It will feel unusual. … having never seen one, I can’t tell you what it will look like.”
At one point, the Coleman side sought to execute the trial in phases, moving from absentee ballots to alleged double-counted ballots to missing ballots. It could have extended the court proceedings into March.
That got shot down by the three-judge trial panel, all veteran district court judges who were appointed by Associate Supreme Court Justice Alan Page.
So, for those laypeople who need a familiar context to grasp what’s ahead of us, Franken’s lead lawyer Marc Elias provided it: “I suspect this will look much more like a trial that you … see on ‘Law and Order’ and ‘LA Law.’ “
He continued, with a smile: “There will be the usual commercial break. There will be a cliff-hanger. Then, we’ll get resolution.”
Seriously, Elias added about the case coming your way, “It is extraordinary. It will be an historic event.”
Expecting such drama from this legal theater and seeking full transparency, the three judges broke with Minnesota tradition and will be allowing this trial to be televised. Mix in the importance of President Barack Obama needing any Democratic vote he can muster in the U.S. Senate, and it doesn’t get any better than this for political and legal junkies from those inside the Beltway to the crowd that will gather in the third floor of the elegant, but simple, Minnesota Judicial Center.
For sure, a light will be shined on the inner-workings of democracy. In Courtroom 300, it will be determined whether Franken or Coleman, candidates who each could barely muster 42 percent of the vote on Nov. 4, will be a member of America’s most exclusive club, by this time next month.
Or a loser in the closest and most expensive Senate race in state history.
Minnesota’s reputation as a crisp, self-congratulatory bastion of “clean” democracy will also be on trial. Or it could be a slippery slope into being mentioned — unfairly — with Florida as a place where fair elections go to die.
Big stage: What you’ll see
Imagine you are in one of those hard pew-like benches in the oak-framed courtroom. Or watching the action live on your computer at work. (MinnPost will be streaming all of the proceedings.)
Those three judges are seated on the far left side of the seven-chaired curved Supreme Court bench. The robed jurists — Stearns County District Judge Elizabeth Hayden, Pennington County District Judge Kurt Marben and Hennepin County District Judge Denise Reilly — will face you and the two crowded lawyers’ tables, Franken’s directly in front of them, Coleman’s to their left.
It is a civil trial, so Coleman will have to prove his case on the preponderance of the evidence.
The case will begin with opening statements. Friedberg will present Coleman’s side. Kevin Hamilton, a recount expert from Seattle, will present Franken’s side.
Friedberg said today that he’ll be calling Coleman staff people first to introduce evidence. County auditors, elections officials voters could be called by both sides: What did you see? How did you separate ballots?
No outbursts in the courtroom, please.
With Franken ahead in the recount, it is Coleman who is suing here. The burden is on him to convince the judges there were voting irregularities and counting issues that, if “fixed,” can change the outcome of this election.
But arguments, affidavits, exhibits and Minnesota Statute 209.06 aside, here’s the bottom line: Can Coleman’s lawyers find enough votes to swing Franken’s 225 votes?
More importantly, can Coleman’s lawyers persuade the judges to include more votes to put him over the top?
It’s a tall order, and one of the key reasons the major item in this case will be the method in which some absentee ballots were rejected by local election officials.
For all the talk of alleged double-counted votes or missing votes or newly found votes after Election Day, it seems unlikely that Coleman can scrounge up enough votes in those categories to net him the 226 new votes he needs.
He’s got to win big on the absentee ballot issue. His lawyers have got to show that different standards were widely used in many of the state’s 87 counties and that, somehow, this court has to re-examine a large bundle of previously rejected ballots.
Coleman wants the court to examine as many as 11,000, a sort of needle-in-the-haystack approach. Franken’s side is seeking to limit what it calls a “fishing expedition.”
In an earlier phase of this drama, Coleman’s lawyers focused on about 650 ballots they said were turned down wrongly. But even they said, of those, only about 44 looked as if they should be counted. That 650-ish pool has been ever expanding recently for Coleman’s side as it seeks votes anywhere, everywhere.
(See MinnPost colleague Eric Black’s analysis of this a few weeks back. It still stands.)
And, of course, who knows which candidate would receive the votes in those ballots? (There’s a belief from the Coleman camp they could tilt toward Coleman.)
When about 1,000 absentee ballots were opened and counted by the State Canvassing Board earlier this month, Franken won them handily. That’s where Franken extended his lead.
While this “election contest” trial starts anew, as if the Canvassing Board’s rulings never happened, this is also true: That board, which included two Tim Pawlenty-appointed Minnesota Supreme Court justices, concluded that Franken got the most votes.
Will these three judges determine that the Canvassing Board came down on the wrong side of election history?
Appeals and the feds
During the course of the trial, appeals of individual court rulings can be taken to a higher court, but that’s highly unlikely and difficult. Findings of fact by the judges on evidence are also difficult to appeal later on. It will be the legal rulings that most likely will trigger any step beyond this trial.
While some experts have been opining that the case is surely headed to the federal courts, that likely only could happen if and when this state court case concludes.
Having two courts looking simultaneously at the same case is unusual, because the federal court likely would defer to the ongoing state court proceedings. And already some key federal issues are imbedded in this case.
One is “equal protection,” outlined in the U.S. Constitution’s 14th Amendment. Are all the votes being counted uniformly and, thus, all of the voters being treated equally? This has become Coleman’s legal mantra.
This is the link to the 2000 Bush v. Gore recount. And we know how that turned out.
Also, Franken’s side, citing U.S. constitutional issues, has gone to the Minnesota Supreme Court in pursuit of his election certificate to take his seat in the U.S. Senate even before this state trial ends.
A hearing on that motion is set for Feb. 5, probably about the time this trial will be winding up.
Indeed, Franken’s lawyers have maintained this entire state case should be dismissed and any voting irregularities evaluated by the U.S. Senate Rules Committee, not three Minnesota judges. (That notion was shot down Thursday by the three judges, who are now playing on the biggest stage of their careers.)
Still, an appeal of the outcome of this Minnesota trial seems certain; either to the state Supreme Court or to some other forum, be it the federal courts or the U.S. Senate.
One thing is for sure, however: if Coleman can’t prove his case to the three judges, Franken’s side — quicker than you can say Harry Reid – will immediately declare him the Senator — again — and instantly seek Secretary of State Mark Ritchie’s and Gov. Tim Pawlenty’s signatures on the precious election certificate, which both have refused to sign until this trial ends.
Coleman might seek to block the issuance of the election certificate, pending some sort of subsequent appeal.
But Mr. Reid won’t stand for that.
By the way, Marc Elias, Franken’s lead recount lawyer, also happens to work for Reid.
The robed jury
Hayden, Marben and Reilly are an all-powerful panel of three robed and relatively obscure district court judges, respectively, from St. Cloud (appointed by Democrat Rudy Perpich), Thief River Falls (named by Independent Jesse Ventura) and Minneapolis (named by Republican Arne Carlson). They have the fate of Minnesota’s U.S. Senate seat in their hands and history in-the-making on their yellow legal pads.
They are rotating daily as presiding judge.
So far in two hearings and in the issuance of some rulings, they seem attentive, smart and eager to keep the trial moving swiftly.
Both sides have in their possession at least 11,000 copies of absentee ballots.
Today in court, three white, legal boxes were stacked on the judges’ bench area, along with a half-dozen thick three-ring binders and a foot-high stack of other documents.
As of this morning, on two state websites, more than 100 (I lost count) separate documents have been filed in connection with the election, beginning in November.
At least one of those filings included 565 pages.
Franken’s side has shown in early court hearings that it likes visual aids, such as oversized posters detailing Minnesota statutes, sort of like a junior high science project.
Coleman’s legal team got into the oversized-cardboard poster groove today at a pre-trial hearing. It’s all good for the swamped judges and TV.
Tell me the issues again?
Were the more than 2.9 million votes cast on Nov. 4, 2008, for Democratic challenger Al Franken and Republican incumbent Sen. Norm Coleman counted accurately, fairly and uniformly statewide?
Were about 11,000 of the 288,000 absentee ballots cast rejected properly and with consistent measures in all 87 counties?
Were any votes counted twice? Just because a precinct registry says 20 people voted and 22 votes exist, does that mean votes were double counted? Are there other reasons such discrepancies could exist?
Should votes cast on Election Day that have since gone missing be counted?
Should votes that were found after Election Day that weren’t originally counted by included in the final tally?
Lots of them, for some terrific lawyers. Now, you really need a scorecard.
For Coleman: Top Minneapolis criminal defense lawyer Joe Friedberg; Dorsey & Whitney litigator James Langdon; Washington, D.C., heavyweight Republican Ben Ginsberg, who was a key player in the 2000 Presidential recount; former Minnesota state Sen. Fritz Knaak; longtime Republican Party attorney Tony Trimble; and Trimble colleague Matthew Haapoja.
For Franken: Democratic Senatorial Campaign Committee lawyer Marc Elias; former Minnesota U.S. Attorney David Lillehaug; Seattle-based Elias partner Kevin Hamilton, who helped Washington Gov. Christine Gregoire win her recount in 2005; recount specialist, filmmaker and American University law professor Chris Sautter; and another Seattle-based Elias partner, David Burman.
Friedberg is expected to take the courtroom lead on the Coleman side, but look for the Franken team to be a more collective effort.
For you football fans out there, the Franken side will be taking its cue from the New York Giants. Turns out Elias is a nutty Giants’ fan and loves the Giants’ approach of “Running Back by Committee.”
Because the Giants three running backs — Brandon Jacobs, Ahmad Bradshaw and Derrick Ward — have been dubbed “Earth, Wind and Fire,” the Franken lawyers have taken on that moniker, too. (Guys, guys, guys.)
Emotional Elias is Fire. Cool Lillehaug is Earth. Hamilton is the guiding Wind.
But then, come Monday, there will be no shortage of lawyerly winds.
When it’s all over — who knows when? — a senator will be swept to Washington by a deliberate breeze from a definitive three-judge ruling, an election certificate finally in hand but, undoubtedly, with a cloud forever hanging over his head.
Jay Weiner can be reached at jweiner [at] minnpost [dot] com.