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Judges named to hear Senate election contest; Coleman side reacts colorfully to Franken certificate play

A Rudy Perpich appointee, an Arne Carlson appointee and a Jesse Ventura appointee will decide who becomes the next U.S. senator.

Supreme Court Justice Alan Page late this afternoon named Hennepin County District Court Judge Denise Reilly, Pennington County Assistant Chief Judge Kurt Marben and Stearns County District Court Judge Elizabeth A. Hayden to oversee the trial, which will be known as “Sheehan and Coleman v. Franken.” (Sheehan is Cullen Sheehan, Coleman’s campaign manager.)

Page had the option of naming a prospective panel of judges and offering both sides the chance to strike jurists that each didn’t like. Instead, he got right to the point and named just three without consult with the campaigns. Here are quick bios of the judges and links to official sites:

Hayden, of St. Cloud, a judge for 22 years, was appointed by Perpich.

Marben, of Thief River Falls, was appointed by Ventura in 2000.

Reilly, who sits in Minneapolis, was appointed by Carlson in 1997.

A fuller descriptive bio of Reilly, written by former U.S. Attorney Thor Anderson, said: “Judge Reilly is all substance without puffery or pretense. She will devastate the unprepared; reach out a helping hand to the new, inexperienced and nervous lawyer; cheerfully and graciously learn from the prepared lawyer; and honor all.”

* * * *

Another strange day
Page’s action capped what earlier had become quite a strange day. Make that, another strange day in the Franken-Coleman recount, which is now an election contest that likely soon will turn into a trial and, probably, an appeal.

We’re in a holding pattern between the State Canvassing Board, which said Franken had won the recount, to that moment when a state court finally — once and for all — declares Franken (or Coleman) the real winner.

This strange period is one in which both sides are doing all their legal work and seeking out voters to testify or supply evidence about how their vote didn’t count. They’re also digging up elections officials who were witnesses to alleged double counting of votes or those who say, “There was absolutely duplicate counting.”

So, in some ways, it should be a quiet period of gathering and preparing for Minnesota’s next trial of the century, which is expected to start before the end of the month.

So, it’s a strange period of legalities, accusations and rhetoric. Sort of like every day since Nov. 4, Election Night, one guesses.

But as time marches on, the noise feels a bit more screechy as the stakes are now crystal clear. To review, Franken has a 225-vote lead, and the only way he’s going to lose that is if a three-judge panel, sitting in Ramsey County District Court, hears all the testimony, wades through all the evidence, rings a bell and says: “The winner, in that corner, wearing that gray suit, is . . .”

So, that’s why today, with all the snow falling and temperatures dropping like the New York Stock Exchange in October, played itself out as a surprisingly caustic day on the recount/contest front. And it’s only Monday.

It began with the Franken campaign sending a letter to Gov. Tim Pawlenty and Secretary of State Mark Ritchie saying the time was nigh for those top officials to sign an election certificate and hand it over to Mr. Franken.

After all, Franken’s the winner … so far.

Franken floats idea; officials quickly shoot it down
That effort was shot down faster than any idea that’s been floated over the past two months.

Ritchie sent out his release so swiftly and unequivocally saying he wasn’t about to sign the certificate that the ink was still wet on Franken’s initial letter. Pawlenty quickly followed with similar sentiments.

Then, the Franken assertion that he should get his election certificate — citing federal law — became a hanging curveball for the Coleman campaign to whack deep into the right field stands.

First, Coleman campaign manager Cullen Sheehan weighed in with a short, formal statement:

“Al Franken knows he can’t win this election contest based on the major inconsistencies and discrepancies that were part of the recount, and his attempted power play today is evidence of that.  He can’t and won’t be seated in a seat he didn’t win, so he is trying this underhanded attempt to blatantly ignore the will of Minnesotans and the laws of the state. The totals certified by the State Canvassing Board include double-counted votes, inconsistencies regarding rejected absentee ballots, and inconsistent handling of newly discovered and missing ballots.  These are serious issues that both the canvassing board and the Minnesota Supreme Court directed be handled in an election contest, and that will go forward as required.”

But it was up to Coleman’s recount attorney Fritz Knaak, who has become downright affable as the months have worn on, to heat up the chatter.

It came at an afternoon news conference at Coleman’s St. Paul headquarters. By the way, part of what was once Coleman’s office suite is now under construction, with ducts here and there. The campaign’s offices have been shrunk. Franken, by the way, has moved his situation room to DFL headquarters near downtown St. Paul.

This unsettled, symbolism of disarray is profound.

For Knaak, one lowly print journalist with bad judgment had the courage to slog through blizzard conditions to confront Knaak face to face. (Your MinnPost correspondent.)

All the other laptop-slaves stayed in the dry confines of their fancy offices and participated in a conference call. Two TV photo-journalists recorded Knaak’s presentation and the sounds of tiny voices of journalists coming from the other end of the phone like children’s voices on the end of strings on soup cans.

It could not have made for good TV.

Coleman camp lets fly
Too bad, Knaak, the former state senator, was in midseason form, and the campaign followed up with a letter (PDF).

He called the Franken effort to get the election certificate now an “incredible and rather astonishing” power play, “an unprecedent and futile charade,” an “arrogant move” and “an insult to the process.”

And he was just warming up.

“Al Franken is not the winner,” Knaak said. “There is no winner, and there won’t be a winner until the process stipulated in Minnesota election law has been completed.”

Then, Knaak said, if the election contest goes as he hopes it will, “Norm Coleman will be back on top and back to the United States Senate. No one, not Al Franken, not [Senate Majority Leader] Harry Reid, not the national Democrats can declare a winner in Minnesota before there’s an actual legal winner … Today’s move by Al Franken signals his desperation … Our voters and our laws matter too much to let politics try to influence the outcome of this election.”

Politics enter into today’s crossfire of adjectives and legal maneuvers?


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

Comments (5)

  1. Anonymous Submitted by Anonymous on 01/13/2009 - 07:40 am.

    Hilarious because Knaak declared Coleman the winner on at lest 5 occasions, but now they has never been a winner.

    Franken should have taken the high road and not asked to be seated until it is all said and done. This is the first, and only time he has done something a little too pushy.

  2. Submitted by Erich Russell on 01/13/2009 - 09:58 am.

    I understand that in this weird corner of the world we are supposed to venerate the spin like a Pollack painting, but recount withdrawal may be at hand. The “power play” around the election certificate portends the end game. This election contest is made a non-justiciable proceeding by the Constitution’s reservation of the power to judge its election to the Senate. Franken is right, the withholding of a ministerial task (issuing a certificate which would be issued automatically in a State legislative election) cannot vest jurisdiction in these three judges or the State courts over a question retained by the Senate. The Minnesota portion of the process is going to go out with a whimper.

  3. Submitted by Dean Carlson on 01/13/2009 - 10:59 am.

    I’d love to hear the “inside baseball” strategy for the Franken request. He’s got super smart lawyers and they would have known that the request would have been summarily denied and that the Coleman campaign would have called foul.

    So what was the purpose of the request? I agree with the comment above, it’s one of the first times the Franken campaign was a little too pushy. Was there some other strategic or legal reason for pushing this yesterday or was it the lawyers and candidate getting a little too full of themselves?

  4. Submitted by Brian Simon on 01/13/2009 - 11:43 am.

    Erich Russell’s comment is interesting. My question is whether the Senate could rule on the election prior to the election’s completion. Given that MN election law allows for a process to contest the election results, wouldn’t it be premature for the US Senate to step in & excercise their power as final arbiter of elections of their membership in this case?

  5. Submitted by Erich Russell on 01/13/2009 - 04:57 pm.

    Brian Simon succinctly and compellingly states the political reason for letting the election contest play out. There is albeit a chicken and egg quandry in allowing it to proceed because deferring would actually end the process under Minnesota law and justify issuance of the certificate. The reason for declining to take the case is that the court’s opinion is advisory and not binding. In a matter which is intrinsically political, courts have been loathe to go into this thicket. We’ll see…

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