The Election Trial from Hell is moving into a critical phase. Like the snows of Minnesota that melted away the past few days, so, too, may the massive universe of ballots slide towards and then spin down the drain of election history over the next few days.
Lines have been drawn and Judges Elizabeth Hayden, Kurt Marben and Denise Reilly will hear arguments Thursday that, some time soon after, will result in significantly streamlining this trial.
Or so it would seem.
“We are in a universe-shrinking mode,” said Al Franken’s lawyer Marc Elias, who has talked about the universe of absentee ballots the past few weeks as much as he has legal theories and the absence of a second Minnesota senator in Washington.
Both sides have their messages and it is imbedded in the legal positions they will take at 1 p.m. at a critical hearing.
The Franken message is this: There are laws in Minnesota. To vote via absentee ballot a voter must follow them. Voting via absentee ballot is a privilege. Perhaps those absentee ballots laws should even be changed. And Secretary of State Mark Ritchie even pushed for such reform today.
But in November, 2008, laws were in place, and, goldarnit, the law must be followed.
Franken, of course, is officially ahead in the recount by 225 votes and seems to have picked up another 24 Tuesday in a ruling from these same three judges.
The Norm Coleman message pushes the four-major legs of the absentee ballot law, but, then, former Sen. Coleman is trailing.
And it highlights a key legal position that some votes have been counted in some counties while others — with similarly improperly submitted ballots — have been rejected. That’s not fair or equal, Coleman’s side says.
Here’s the tally in legal briefs both sides filed late today. Tuesday the judges asked the two campaigns their opinions on whether 19 discrete and some even esoteric categories of ballots should be counted.
From signatures, to date of arrival, to the legality of witnesses, to wrong addresses…lots of little, itty-bitty things that, it seems, the law requires.
The Coleman side told the judges in their documents today that 16 of the judges 19 categories should be counted.
The Franken side said that two of the 19 categories should be counted.
It all made for some fancy rhetorical mouthwork today.
Ben Ginsberg, Coleman’s legal spokesman, calls Franken’s position on which ballots should be included now in this election contest: “The Great Franken Disenfranchise Machine…they have made yet another attempt to keep valid Minnesota voters from having their wrongly rejected absentee ballots counted. We are saddened… “
Countered Franken’s Elias: “Minnesota law is quite specific with respect to absentee voting…The law is what it is…We’ve said all along from the very beginning of this…that every lawful vote ought to count. The counties did a good job. To believe they missed this by thousands of votes is to underestimate what a good job these county officials did.”
Of course, what we think and what they say in the hallway outside of the courtroom means diddly.
It’s what Marben, Reilly and Hayden, who were appointed to their thankless jobs by Supreme Court Justice Alan Page, think.
And whether, in fact, they are going to continue to review up to 4,800 or so ballots in this trial or, as they said in a recent order, “streamline” the proceedings by narrowing the scope of the sorts of ballots they will consider.
We are not judges here at MinnPost and don’t even play ones on TV. And the three robed ones don’t hold daily news briefings like the articulate legal whizzes do to explain to us their inner most feelings.
But if there is any hint of how the judges are leaning on this it may come out of their ruling Tuesday in the so-called “Nauen 61” case.
Those are the 61 Franken-backed voters represented by Minneapolis lawyer Charles Nauen. They each wrote detailed affidavits explaining to the court why each of their votes should count. They each believed they followed the law.
Of course, the Franken side didn’t oppose the “Nauen 61.” They are Franken votes.
But neither did the Coleman side. And not one county election official from the 11 counties in which the voters voted objected to the notion of including these once-rejected absentee voters into the tally.
But Judges Reilly, Marben and Hayden only ordered 24 of the ballots to be counted. Only 23 of them clearly satisfied the judges’ increasingly narrow view that you’ve got to follow the letter of the law to have your vote counted in their courtroom. The 24th voter mistakenly placed her registration form in the secrecy envelope inside the absentee ballot package. The judges ruled that secrecy envelope can be opened to search for the registration; if it’s in there, her vote can count.
The point is this: Instead of Reilly, Marben and Hayden, perhaps these three hard-working state court judges should be named Picky, Picky and Picky.
With no outside force opposing the 61 voters, these overly cautious judges allowed only 24 of their ballots to count. Of the 37 others, they sought more information and evidence.
Clearly, the Franken legal team is playing to the judges’ migration after 12 days of hearing testimony and hours of reading motions: the state law with the four statutory requirements must be followed…unless it wasn’t the voter’s error, but a mistake on the part of election officials.
(Four key rules: voter’s name and address on outside envelope must match the absentee ballot application; signatures must mach, too; voter must be registered; voter didn’t vote in person.)
The Coleman side says it agrees with the basics of the law — but — and this is a big but — they claim that in different counties different ballots were treated differently, and before the State Canvasing Board, too.
They say, in fact, that in some counties categories of ballots that now face being excluded by the court have already been counted in other counties. How can you include some and keep out others?
Still, history does show that the Coleman campaign — during the recount — resisted including wrongly rejected absentee ballots. In this trial phase, with Coleman trailing, the Coleman side has said “count ‘em all.”
History also shows the Franken side has carefully always said “count all the LEGALLY cast ballots.” What’s legal remains narrow to them; it’s what’s in the law.
It allowed the Franken side to pull a big legal touche’ today in court.
During the cross examination of Dakota County elections official Kevin Boyle, Franken lawyer David Lillehaug asked Boyle to look at the Coleman for Senate Web site.
On there is a very helpful list of all the voters whose absentee ballots have been allegedly wrongly rejected.
But on the Dakota County list are 10 names that were challenged and blocked during the recount phase…by the Coleman campaign.
Lillehaug, the former U.S. Attorney, who is diligent, concise and painfully respectful, couldn’t hold back a gleeful smirk as Boyle testified to the fact that it was Coleman campaign officials who blocked the counting of those votes last year.
But now the Coleman side is claiming those voters were being disenfranchised by the Franken campaign.
It’s the sort of moment that reveals the complexity of which side was against counting votes before it was for counting votes — and vice versa.
The irony of that Web site list is that it may have been a moment for the judges’ to reveal those inner most feelings we’ve been seeking. A smile? A frown? A furrowed brow?
They watched and took notes silently, with nary a reaction. Later this week, perhaps, the judges will let us know where they stand.
There’s light at the end of the tunnel, dear readers. Something big’s about to happen.
Jay Weiner writes about off-the-field sports issues, such as sports business and sports and public policy, and about other subjects. He can be reached at jweiner [at] minnpost [dot] com.