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Coleman-Franken Senate trial: Again, both sides claim gains after a court ruling

From the left, Judges Elizabeth Hayden, Kurt Marben and Denise Reilly today issued a highly anticipated ruling limiting the universe of rejected absentee ballots to be reconsidered.
AP Photo/Jim Mone
From the left, Judges Elizabeth Hayden, Kurt Marben and Denise Reilly today issued a highly anticipated ruling limiting the universe of rejected absentee ballots to be reconsidered.

One hundred and one.

That’s how many days it’s been since most Minnesota voters went to the polls to vote for a U.S. senator.

Three thousand five hundred.

That may be how many absentee ballots still remain on the table after a mega-ruling this afternoon by a diligently detailed troika of judges.

Thirteen of 19.

That’s how many types of ballots Judges Elizabeth Hayden, Kurt Marben and Denise Reilly seemed to sweep away today.


That’s how many sides claim they won the judges’ ruling … 101 days into the tireless, complex, spinning, historic recount and election contest.

And so it goes in the Norm Coleman-Al Franken trial.

Victory at hand – for both sides?
It’s happened before. A seemingly cataclysmic event occurs. Both sides claim victory.

It happened again tonight after a major court order was issued by the unit we’ve come to know as Hayden-Marben-Reilly that has been remarkably unanimous since this trial began Jan. 26.

In the sweep of the judges’ decision (PDF), the Franken side sure seems to have won, with the three-judge panel deleting about 13 categories of votes it ruled are illegal and won’t be counted.

That’s what Franken wanted.

But, in the numbers game, Coleman might have come out further ahead than the Franken side wanted.

On the other hand, in the legal foundation zone, the black-robed triumvirate produced some words in an opinion that practically echoed those of Franken lawyer Marc Elias during his Thursday oral arguments in court.

And, even if, say, the ballot universe to be considered in the trial still hovers in the 3,500 range – as Coleman lawyers asserted tonight – they still must prove firmly that all 3,500 of those ballots were legally cast.

“Citizens of Minnesota should be proud of their election system,” the judges wrote unanimously, adding later, “There is no systemic problem of disenfranchisement in the state’s election system, including in its absentee-balloting procedures.”

They added: “The facts presented thus far do not show a wholesale disenfranchisement of absentee voters in the 2008 general election.”

It’s still Coleman’s case to make
The judges also emphasized – again – that they will strictly follow the state law and its tight standards and that Coleman’s side bears the burden in showing that ballots were legally cast.

“They cannot meet this burden simply by showing that ballots were wrongfully rejected,” the judges wrote.

No, Coleman has to show ballots were legally cast, and presumably by each and every voter. And, so far, in the trial’s first three weeks, Franken cross-examiners Kevin Hamilton and David Lillehaug have placed doubt on many of Coleman’s witnesses on that score.

“We are very pleased with the court’s decision,” said Franken lawyer Elias.

But Elias declined to say how many ballots were eliminated by the judges today.

Meanwhile, the Coleman side said they’re tickled pink – it is Valentine’s Day Eve, after all — at the ruling by the election contest jurists.

“We’re very pleased,” said Coleman lawyer Fritz Knaak.  … This is good news for the vast majority of Minnesotans.”

Knaak said that about 3,500 votes are still out there to be counted, in his opinion. And that only between 800 or 900 were swept away by the judges.

The Coleman view: “It’s really about the votes, not the categories,” said James Langdon, another Coleman lawyer.

One key category that the court didn’t address was signature mismatches on ballot applications and the absentee ballots themselves. The Coleman side has been offering evidence on many absentee ballots in which a voter’s signature seems not to be the same on two documents. It’s a judgment call. At some point, the three judges will have to make that call, but their order seems to emphasize the anti-fraud provisions of state law. Eventually, they may not look kindly on signature glitches.

Also, said Ben Ginsberg, Coleman’s chief legal spokesman, the judges didn’t dive back into the “equal protection” issue. It’s one they seemed to dismiss in an earlier opinion. But the Coleman side continues to assert that there is a major problem with County A accepting a certain kind of ballot but County B rejecting it.

“It is a sticky wicket,” said Ginsberg, “but nonetheless it is an issue in this election still.”

How many votes in and out?
Noah Kunin, the recount expert and numbers cruncher at The, which is not exactly a Coleman-leaning news outlet, figures the deleted votes may total closer to 1,000, than 900, but that’s pretty darn close to Knaak’s range in an ever-changing landscape of ballots being withdrawn in court the past three weeks.

And another local recount geek, who requested anonymity and who clearly has too much time on his hands, told MinnPost that the judges’ order today means Coleman lost exactly 893 ballots to be considered. A third MinnPost correspondent predicts the Coleman ballot loss is somewhat north of 1,000.

A few weeks back, Coleman wanted 12,000 ballots examined. It was reduced to about 4,800. Over the past 15 days of testimony, ballots have been withdrawn here and there. Now, we might be at 3,500.

But let’s not get mired in math, although that might inform the length of the rest of this trial.

Let’s review and let’s examine.

Earlier this week, the judges asked both sides to streamline the sometimes tortoise-like trial proceedings. The judges proposed 19 absentee ballot categories. They asked the two sides to brief them and then present arguments about which categories should remain.

They are sliced-and-diced categories.

“An absentee ballot submitted by a voter in an absentee ballots return envelope on which the voter’s address is not the same as on the absentee ballot application” is one.

Or … “An absentee ballot dropped off by a proper agent on Election Day but after the statutory deadline for delivery.”

You get the idea. They’re narrow and specific. (Read that PDF of the order for the details.)

Thursday, the lawyers argued and, by Elias’ count, Franken’s side won on 13 points, thereby removing 13 categories of ballots.

And the judges wrote some pretty strong language: “The parties, the Court and the public are not served by needlessly delaying the proceedings in this election contest through the presentation of evidence regarding ballots that, as a matter of law, should not be opened and counted.”

On Monday morning, the judges have ordered the lawyers to come in to their chambers and figure out what’s next.

“I view this opinion to say that they want testimony by ballot,” said Ginsberg, “ballot by ballot. There are still many ballots very much in play.”

Monday is Presidents Day, a holiday. But not in the Franken-Coleman trial. There are no off-days in this battle.

For the record, Monday will be 104 days since we all voted.

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

Comments (1)

  1. Submitted by Alyce Bowers on 02/14/2009 - 08:14 am.

    Coleman has been claiming that most of the ballots he thinks were improperly rejected were because the election officials ruled the signature on the absentee ballot application and the signature on the absentee ballot did NOT match. This category was NOT one of the courts 19 categories. Franken’s brief added it anyway as a sort of 20th category.
    The challenge for Coleman now is that he must do four things to get these ballots accepted and have the vote for him:
    1. He must contact the voters.
    2. He must select the ones who say they voted for him.
    3. He must get them to agree to swear in court or with an affadavit that they signed both the application and the absentee ballot envelope. Penalty of perjury if they lie.
    4. He must prove that EVERY other requirement was met and the ballot is therefore valid.

    Can he do this with at least 250 of these ballots out of couple thousand remaining? His past record is not promising. Almost every witness he dragged into court so far has said something like “Well my girlfriend signed it, not me, so that is why it did not match.” Or “I probably voted in person, anyway.”

    And the court better set some deadlines for Coleman or this can drag on for weeks.

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