Senate recount trial: Franken picks up likely 24 votes

If you’re scoring at home, it sure looks like Al Franken’s U.S. Senate recount lead is now at 249, not 225.

Franken led the U.S. Senate race after the statewide recount by 225 votes.

The election contest three-judge panel today granted a motion by 61 Franken supporters to count some of their ballots.

Twenty-four to be exact. And they’re Franken votes.  (Earlier in the day, it was reported as 25 additional votes. That was reported incorrectly.)

Meanwhile, the judges also hinted that they’re leaning towards opening at least one category of ballots previously rejected.

And Judges Elizabeth Hayden, Kurt Marben and Denise Reilly surely showed their hand on another matter: Voters’ affidavits are the strongest evidence if both campaigns want to add votes.

“I’m very pleased that 24 votes were accepted,” said Charles Nauen, the Minneapolis lawyer who brought the voters’ lawsuit.

Ben Ginsberg, Norm Coleman’s lawyer, said of the ruling, “I thought it was really encouraging.”

After all, the Coleman side is suing in this election contest to have many previously rejected absentee ballots examined and, eventually, counted.

But the ruling today suggests that voter affidavits — and not speculation on the witness stand by county election officials — might be the ticket to acceptance by the judges.

Ginsberg said the Coleman campaign would be getting affidavits from voters.

The foundation of Nauen’s lawsuit was the detailed affidavits from each of the voters, explaining why each believed his or her vote should be counted.

“Having reviewed all of the evidence provided by Petitioners in support of their motion, the Court determines that the Petitioners … have provided unrebutted evidence that their absentee ballots were legally cast and should be counted,” the three-judge panel wrote unanimously.

The other 37 petitioners need to provide more evidence to the judges if they want their votes counted. Nauen said he’d be analyzing the judges’ ruling to see what additional information the court needs to accept the 36 ballots.

The 24 accepted ballots will be opened by the secretary of state’s office at a time and date to be determined, the judges said.

But here’s the most interesting part of the decision … for you recount geeks out there: One of the 24 ballots to be counted is a ballot in which the voter registration card is in the internal secrecy envelope of her absentee ballot package.

This has become a recurring issue as Coleman has presented evidence. Some new voters mistakenly placed their registration cards in the same internal envelope as their ballots. They should have included the registration form in an outer envelope. If new voters placed their registration application in the secrecy ballot, their ballot was often rejected because election officials couldn’t tell if they, in fact, were registered.

Now, it seems, some ballots previously rejected ballots because of lack of registration may be opened.

Also, expect a flurry of more affidavits from both sides from other voters whose ballots seem to have been rejected wrongly.

Meanwhile, Dakota County elections official Kevin Boyle continued to testify this morning. He was questioned by Coleman lawyer Tony Trimble, who attempted to show the judges that some previously rejected absentee ballots from Dakota County should be counted. Boyle will be on the stand this afternoon, too.

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

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Comments (4)

  1. Submitted by Dave Thompson on 02/10/2009 - 12:48 pm.

    Oh, puhLEEZ. We have to wait for the campaigns to track down all 10,000 absentee voters whose vote wasn’t counted, and have each of them file a lawsuit? This election won’t be settled until 2014.

  2. Submitted by Erich Russell on 02/10/2009 - 03:42 pm.

    Now we’re really plying new depths of absurdity. Affidavits containing information that was not available to the election judges at the time will be used to determine whether the rejection of those ballots on election eve was lawful.

  3. Submitted by Jeff Nibert on 02/10/2009 - 11:29 pm.

    According to a spreadsheet on the MN SoS website, in the entire state of MN, there were 39 rejected absentee ballots “in which the voter registration card is in the internal secrecy envelope.” I think most or all of those will be counted now.

    My guess is that the 23 out of 24 and likely the remaining 37 come from the pool of IRABs. Remember the ~1356 IRABs, identified by the county elections boards, which were considered in the last week of December? About 400 were not counted because one or the other campaign objected.

    It seems to me a no-brainer that the remaining ~340 of these will now be ordered counted. In its 12/19 order, the MN SC contemplated that these ballots would be appealed to the ECC and probably counted. My guess is that each campaign will now be introducing affidavits from each of the remaining ~340 voters in this group.

    However, I think it will be tough to convince the ECC to count many of the other 11,000 ballots that were correctly rejected according to the criteria in the MN statute, affidavit or no affidavit.

  4. Submitted by Jeff Nibert on 02/11/2009 - 12:18 pm.

    I stated that in the entire state of MN, there were 39 rejected absentee ballots “in which the voter registration card is in the internal secrecy envelope.” These ballots (so-called “Pile 3A” ballots) were from all counties as they were separating out all rejected absentee ballots into piles. That number was the last one reported when the counting stopped (about halfway through the process). So if all rejected absentee ballots are reviewed, one can extrapolate to a state total of somewhere around 70 or 80, give or take. (Also, in addition to MinnPost, I highly recommend WineRev’s daily diaries on this contest at Daily Kos).

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