When you sidle up to the bar in this legal saloon, these three robed bartenders are pretty tightfisted.
You just can’t willy-nilly order up a gaggle of votes and expect the judges to put them on the rocks and slide them down the bar.
No, there’s “a high bar” for what Judges Elizabeth Hayden, Kurt Marben and Denise Reilly are willing to consider legally cast votes.
That’s what’s becoming clearer as the Norm Coleman lawsuit against Al Franken continues in Courtroom 300.
Sharpening pencils like CPAs
Also, if most of the Western world has either forgotten or grown appropriately bored by this 5-week-old Senate-election trial, the three district court judges have been sharpening their pencils like so many CPAs on April 14.
Hayden, Marben and Reilly revealed their toughness again last night in an order that likely awarded Franken 12 more votes.
It wasn’t an easy “victory” for Franken. It took the stern judges 23 pages to explain why they were only agreeing with Franken’s lawyers that 12 ballots that they wanted opened could be opened.
In the same ruling — in response to a large Franken motion filed last month — the judges denied Franken’s effort to get another 39 ballots opened.
And, with impressive fastidiousness, the judges detailed their specific reasons for rejecting all 39 ballots (PDF pages 14-19).
No candy store
Why? Because these judges aren’t going to hand out votes like candy to either side.
They write: “The Court refuses to order the opening and counting of any ballot without sufficient evidence that the voter who cast the ballot complied with all relevant statutory requirements (or that any failure to comply was not due to fault on the part of the voter.)
If that’s the case, that likely doesn’t bode all that well for “contestant” Coleman, who is still trying to prove his case amid a shrinking universe of potential ballots.
As he pursues his effort to overturn Franken’s recount win, Coleman actually keeps falling further behind. And he’s been putting on his case!
Coleman needs judges willing to open a little bit and include ballots in a recount that could be, might be, sorta are legal ballots.
A unanimous opinion on ‘a high bar’
But listen to the Minnesota baristas with their view in their unanimous opinion of last night:
“[T]he Minnesota legislature indicated its preference for in-person voting and accordingly set a high bar for voting by absentee ballot. Whether the purpose behind this was due to the increased risk of fraud in voting by absentee ballot or for the administrative burden imposed on the State is not for the Court to challenge. It is the role of this Court to apply the law to the facts of the case before it, and not to re-write the requirements imposed by the legislature.”
You want your votes counted, you bring us clear ballots that follow just about every letter of the election law. Otherwise, get away from this bar, sir.
You want to get some service at this bar, gentlemen, bring us indisputably legal ballots.
Franken’s lead significantly increased
Using that “high bar,” the judges have now significantly increased Franken’s “lead” in the recount. (Coleman’s side calls it “an artificial lead,” but for people who like to keep score, it’s the only lead we’ve got.)
A group of Franken voters petitioned the court, and 24 of them have won the right to have their ballots opened. Add the 12 that Franken’s lawyers grabbed last night. And now another group of 19 Franken voters — all seeming to have fulfilled the judges’ high bar — have asked that their ballots be opened.
It could be, before long, that Franken has a 280-vote lead, not 225.
All good news for the “contestee.” But there was some troublesome, but not deadly, news for him in the judges’ opinion, too.
It involved the so-called “missing” 132 votes in Minneapolis. Franken’s side wanted them included in the recount, as they have already been by the State Canvassing Board.
But these judges aren’t ready to do that, they write.
Looking for more evidence
Their minds are still open, but they need more evidence. And it looks as if Franken will have to prove the ballots once existed and, in fact, they are lost in ballot heaven somewhere.
Apparently, Minneapolis elections director Cynthia Reichert is expected to testify to that when she is called to the stand, probably later this week. Expect rigorous cross examination by the Coleman side.
In other developments:
• Franken lawyer Marc Elias has gone to the Federal Election Commission seeking an opinion on whether Franken’s recount effort can go back to donors and seek as much as $30,000 from each to contribute to the Democratic Senatorial Campaign Committee. Huffington Post reported on this last night.
• Among voters on the list that Franken wants the judges to consider are, according to the Coleman campaign, three dead people. (PDF)
Said Coleman spokesman Tom Erickson: “Instead of joining the Coleman campaign in working to protect the rights of every Minnesota voter, including those who had their valid votes wrongly rejected, the Franken campaign continues to cherry-pick Franken-only voters.”
But dead ones?
Elias was asked about that this morning.
“We’ll look in it,” he said, unconcerned, noting, “They started with 4,800 [ballots for the judges to consider to open] and now it’s 2,000.”
His point: Both sides have had some goofy ballots in their desired pool.
The main point: These judges aren’t going to stand for imperfect ballots. Dead men don’t vote in their courtroom. Their bar is high.