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Coleman-Franken Senate trial: A pivotal ruling imminent at a pivotal moment

Lawyers for both sides spent two hours in legal arguments today reprising the basic themes of their positions.

If this were a game – and sometimes, with all the verbal jousting and male sparring, it feels like one – we’d be somewhere in the final seconds of the third quarter.

The final stanza would be nigh.  The commentators would use the time to catch us up on all that’s come before.

If this were a TV mini-series – and sometimes, with the range of  characters, the intermittent drama and  the interlocking tales, it feels like one – we’d be at the point where the writers would have to help us remember the themes and storylines that came before.

It would be a moment in the serial to tie up loose ends.

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And so it was this afternoon at the Norm Coleman-Al Franken election contest trial in St. Paul. Lawyers for both sides spent two hours in legal arguments before a three-judge panel reprising the basic themes of their positions. It was all to guide, cajole and persuade the judges about how to narrow and refine the categories of ballots that may be added to the recount total.

Judges nearing historic decisions
In so doing, the attorneys pushed Judges Elizabeth Hayden, Kurt Marben and Denise Reilly to the precipice of what are sure to be historic decisions.

We may know as early as Friday just which kind of — and how many — ballots the judges still believe were wrongly rejected by election officials statewide.

Whatever they decide will inform and affect Franken’s 225-vote margin, certified by the State Canvassing Board five weeks ago.

The basics are clear …

Franken’s side believes the judges should follow the strict confines of state law that requires that voters follow instructions. If government officials erred in some instances, then, in some cases, ballots should be counted. Otherwise, the Minnesota Legislature has laws and they must be abided by, Franken’s lawyers argue.

Coleman’s side says several things. In some cases, they argue, “substantial compliance” to the law should be good enough. For example, if a voter’s signature on the ballot doesn’t seem to match the signature on the return envelope or a witness’s address isn’t on the absentee ballot envelope.

Coleman’s main point, made by lawyer James Langdon today, was one that’s been a theme throughout: Different precincts and different counties and different election officials judged similar sorts of ballots in different ways.

Indeed, today Langdon pointed to a thick, red three-ring binder of the 933 ballots that the State Canvassing Board counted on Jan. 3. It was that subset of ballots that catapulted Franken to his current lead.

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Langdon said there were ballots in that binder that were counted, while others like them – perhaps with a skewed signature or a goofy witness issue – weren’t counted in other parts of the state.

Judicial decisions narrowing the ‘universe’ of ballots
Still, Hayden, Marben and Reilly, in previous rulings over the past month, have been narrowing the scope of this case and the so-called universe of ballots. That bodes well for Franken.

At one point in his argument today, Langdon went into a long statement about how a voter can submit his or her absentee ballot even if there’s no application on file. This, despite some testimony that someone other than the voter had filled in applications, which is a clear violation of the law.

He then said a “gotcha game” ensues when a voter seeks an application in person at a city or county counter. The voter doesn’t sign the application ballot but isn’t told by an election official to sign it. Then, his vote is rejected.

“That’s an example where official error ought to excuse strict compliance with the statute,” Langdon said to the panel of judges sitting 15 feet in front of him.

He paused.

“I see that you are not buying this,” he told them, particularly Reilly, who had been quizzing him on his argument.

Observers in the half-filled, oak-trimmed courtroom erupted in laughter.

“I thought I had a poker face,” Reilly said, adding more laughter.

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“No, I don’t think so,” Langdon replied. “What can I tell you that will help you buy this?’’

Countered Reilly: “My concern is that the Legislature passed a statute, and I took an oath to uphold the law.”

Strict or loose interpretation of election law?
Franken lawyer Marc Elias, who is among the national Democratic Party’s leading elections law experts, told the judges that he doesn’t necessarily agree with the Minnesota law that so tightly regulates absentee ballots. In fact, he likely would support many of the reforms that Secretary of State Mark Ritchie is proposing to the Legislature.

But, alas, when the Nov. 4 election occurred, Minnesota absentee voters had to sign their applications and ballots, get a witness to sign it and turn it into the correct precinct. And, alas, Minnesota’s elections system delegates vote-counting to the precincts and the counties. It is there that decisions are made by well-meaning people.

If there are any “irregularities” in this count, he said, that is the work for the U.S. Senate to decide, not this three-judge panel. (By the way, Franken’s attempt to get his election certificate and be seated in the Senate still has not been ruled on by the Minnesota Supreme Court.)

And Elias repeated what he’s told these judges before: that Coleman is asking them to overturn the certified results of the election outcome by the State Canvassing Board.

Coleman is “asking this court to do an extraordinary thing … They want this court to say that two justices of the Supreme Court and two judges from Ramsey County and the secretary of state got it wrong. It’s their burden to do so … that is a heavy burden” that Coleman’s side must carry.

Afterward, Coleman’s spokesman Ben Ginsberg called Elias’ presentation “pettifoggery.”

He went on to say: “After this afternoon’s hearing, the question in this case is clear: ‘Al Franken, why won’t you agree to count all the legally cast ballots? Are you so intent on winning that you’re willing to sacrifice the principle that every legally cast vote should count?”

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The real question, however, is: How will the three judges come down on this issue of what is a legally cast vote?

In Elias’ mind, legally cast votes are those in which voters followed, more or less, the letter of the law.

In Ginsberg’s view, legally cast votes include those from some voters who may have messed up a little bit and were denied. Or, more importantly, some voters who messed up like others did; but the others had their votes counted.

That’s the conundrum.

The impact of the judges’ ruling could be dramatic.

Analysis details key categories
In an analysis compiled by Noah Kunin of, of the 4,800 or so ballots that Coleman wants the judges to include, signatures that didn’t match between applications and ballots could affect as many as 800 ballots.

Ballots with registration issues could exceed 1,700.

Ballots on which address stickers or bar codes covered some instructions (making it hard for voters to follow them) could be in the neighborhood of 850.

If, say, those categories alone would be ruled illegal ballots by the judges, the Coleman universe to mine votes could be reduced to the 1,500 range, at best.

On the signature mismatch, county and municipal rulings were inconsistent statewide, Coleman lawyer Langdon pointed out in court.

He said 23 of the state’s 87 counties ruled no mismatches between signatures on applications and ballots. But earlier today, Plymouth city clerk Sandra Engdahl said her city alone ruled about 74 ballots illegal because of bad signatures.

How can that be?

It goes to the Coleman point of inconsistencies among election officials statewide. It goes to Elias’ view that decisions are delegated to local officials under Minnesota law.

So, now we wait on Hayden, Marben and Reilly, who have been precise so far. Whatever they decide will push this game, this mini-series, this historic trial into, it seems, its final quarter, its closing episodes.

* * * * 
By the way, Norm Coleman returned to the courtroom today even as his campaign posted another video at YouTube and sought contributions from supporters for the expensive legal battle.

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