Senate trial developments: The pace picks up, and Franken side gets chance to expand ballot universe

Joe Friedberg, Judge Elizabeth Hayden
AP Pool/Ben Garvin
Judge Elizabeth Hayden, shown at an earlier court session, expressed displeasure today at the early end of the morning session.

The pace began to pick up a bit today in the fourth week of the Al Franken-Norm Coleman Senate election contest.

Judge Elizabeth Hayden, who was presiding today on the three-judge panel, even showed a bit of impatience at one point.

Meanwhile, Al Franken’s side won a key ruling that will allow his lawyers to disclose how many more ballots it wants to have considered. Those would be in addition to the 3,300 or so that Coleman has been seeking to include in the final count.

In another development, Coleman’s insistence on pushing the Bush v. Gore principle of “equal protection” for all voters triggered a harsh rebuttal from Franken lawyer Marc Elias. Elias’ position was echoed by an unlikely ideological ally: The conservative Powerline blog, which has been hammering Coleman’s lawyers for weeks now, expressed skepticism in the former senator’s fundamental position that there have been equal protection violations in this election recount.

But, after hearing conflicting testimony from county elections officials today, Coleman lawyer Ben Ginsberg upped the ante, saying the election could be “fatally flawed,” unless Judges Hayden, Kurt Marben and Denise Reilly begin to take into account discrepancies between counting practices in different counties.

Elias, however, said, “There’s one standard, and it’s Minnesota law.”

But as this trial continues, the volume around the issue of equal treatment of ballots in different counties is going to be turned up. It was big time today.

Speedup, sort of
First of all, this morning Coleman lawyer Joe Friedberg tried a new approach when offering evidence to the court about ballots his client believes should be examined. This time, he made the offering in chunks of ballots, rather than one by one.

That is, in the direct examination of county elections officials today, rather than the drip-drip of offering Mr. Jones’, Ms. Smith’s and Dr. Brown’s  individual ballots, Friedberg’s evidence was  packaged in categories of allegedly aggrieved voters.

For instance, a bunch of alleged signature mismatches, or seemingly unregistered voters.

This was the result of in-chambers meetings Monday and this morning to streamline the case.

As both sides go through those ballots, it’s likely we’ll see a major reduction in the number of ballots Coleman will ultimately ask the three-judge panel to examine.

Friedberg, an often folksy examiner in court, actually seemed to be speaking a bit faster today, too, than in previous days. The message in chambers — which neither side discusses — must be, “Let’s get on the stick, gentlemen.”

When Friedberg didn’t have a witness late this morning to follow Wright County Auditor Robert Hiivala, Judge Hayden said, tartly, “We will with great reluctance recess until 1.”

She wasn’t happy about the lack of flow and that court was breaking about 11:25 instead of the normal noon or 12:15 p.m. time. The veteran judge, who is based in St. Cloud, has been living in a hotel in the Twin Cities the past month.

Parallel universes
The court granted the Franken side’s request to rejigger the number of wrongly rejected absentee ballots it wants examined.

When the case started, Franken’s side sought the review of 771 additional ballots to those counted in the recount.

That was at the same time the Coleman side originally said it might want to examine 654 ballots.

That 654 grew dramatically by the time the trial started. It was eventually self-narrowed to about 4,800 and now to about 3,300 by the judges, according to both sides.

Look for Franken to add many potential ballots to be examined; hundreds likely.

“We will have the right … to put in place the ballots that we believe were wrongfully rejected,” said Elias. That new list must be presented to the court by Friday.

Countered lawyer Ginsberg, somewhat facetiously: “Now, they have gotten religion and will start adding more voters that they want to look at. I’m sure it will be a completely unbiased list, including Coleman, Franken, Barkley votes that they believe should come in. We welcome them to the club.”

Meanwhile, this afternoon, Coleman’s side was working to narrow a couple of key ballot categories it wants in the mix: signature mismatches between ballot applications and the ballot itself, and voters who were allegedly not registered but may have been.

By most analyses, voter-registration issues and signature mismatch disputes could add up to 2,000 of the 3,300 Coleman ballots still in doubt.

New round in Bush v. Gore debate
The Coleman side continues to show that different counties evaluated similar votes differently.

Carver County elections official Kendra Olson, for instance, said her county is strict on getting the addresses of witnesses of absentee ballots. But Wright County Auditor Robert J. Hiivala said his county didn’t check that at all.

And Scott County elections supervisor Mary Kay Kes said her county doesn’t check the registration of people who witness absentee ballots being cast, but Olson said Carver officials do diligently.

Coleman lawyer Ginsberg hammers away at this point every chance he gets, noting that differing standards in County A and County B create an “equal protection” issue in this case.

“What is clear from the testimony is that not all similar ballots are treated the same,” said Ginsberg, a lawyer who helped represent George Bush’s interests during the 2000 presidential recount in Florida.

But Franken lawyer Elias couldn’t take it anymore.

“What you see going and hear going on increasingly every day is a tale of two trials,” Elias said. “There is the one that is about who received the most legally cast ballots, which is appropriate.

“And then there is the one that the Coleman lawyers would wish to be going on, which is a broad equal protection challenge. Where we see whether or not every county and every precinct within every county did exactly the same thing … [So] if we found a felon voting illegally in Wright County, then we need to make sure that all the felons in the state got to illegally vote statewide.

“Obviously, that makes no sense . . . They clearly feel passionately about this Bush v. Gore argument … [but] thus far they have not attracted a lot of success in this argument.”

So far, it’s been turned aside by this three-judge panel and the Minnesota Supreme Court in an earlier ruling.

Meanwhile, the influential Powerline blog, based in the Twin Cities, also opined that Coleman’s Bush v. Gore argument seems shaky.

Wrote Scott Johnson: “I find the Coleman campaign’s equal protection complaint full of sound and fury, signifying (1) that Senator Coleman’s own legal team served him poorly during the recount, and (2) that the panel’s order on Friday cutting back the 4,800 rejected absentee ballots subject to review in the contest may have hurt more than Senator Coleman’s team has heretofore let on.”

Indeed, Friday, after the court’s decision, Coleman lawyer Fritz Knaak said, “Our definition of victory is 3,500 Minnesotans having the opportunity to have their votes counted.”

But Monday, the Coleman lawyers asked the court to reconsider the decision, suggesting as Johnson does, it wasn’t as boffo a victory as first declared.

And Ginsberg today criticized the judges’ Friday decision. At that time, the three judges wrote there was no systemic problem with the election.

Today, Ginsberg said:  “I don’t know how you can say there’s not a systemic problem when you have Scott County saying one thing and Carver County saying they do something completely different.”

Elias, however, argued that the notion of “equal protection” is a matter for the U.S. Senate and not the state court.

Countered Ginsberg, the Republican spokesman: “Does the term stacked deck come to mind?” That was a nod to the Democratic majority in the U.S. Senate.

Is Ginsberg laying the groundwork for an appeal?

No, he said, although Elias opined otherwise. Ginsberg said he wants these three judges to address the problem.

But he called the election “fatally flawed if we go along on this path” of different counties counting differently.

Countered Elias, whose client is ahead by 225 votes: “Look, if they believe that there are 226 or more individual voters who met all the criteria under state law to have their absentee ballot counted, they ought to bring them … But what they want to say is there’s a big pile of hay. ‘Look, I found a hayseed. If I found one hayseed, there must be 100 more.’ … Tell me about the individual ballots that were lawfully [cast].”

By the way, earlier today, the Franken side asked the court not to hear Coleman’s request for reconsideration of the judges’ Friday ruling that reduced the Coleman ballot universe.

Elias wrote that Coleman’s reconsideration effort was “without merit.”

And so it goes.

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

Comments (4)

  1. Submitted by Eric Ferguson on 02/17/2009 - 04:46 pm.

    If I recall, in Florida, the problem was counties had different procedures to follow, and not all of the state was recounting. Here, county officials have sometimes followed the law, and sometimes made errors. Errors aren’t different procedures.

    Also, and I would think this weaken Coleman’s case, the counties that made errors like opening secrecy envelopes were Republican leaning, so Coleman has actually benefited if there have been any equal protection violations. Besides showing violations, I think Coleman has to show he was harmed. If Franken was harmed, that should end it.

  2. Submitted by Alyce Bowers on 02/17/2009 - 06:11 pm.

    Excellent points. And the one category that was treated differently and also has enough potential ballots to make a difference are the absentee ballots from unregistered voters. One count says there may be 1,458 of these in the total 12,000 rejected. Some counties opened the secret ballot to check for a registration card and if they found one, then the ballot counted. Many counties did NOT look.
    So court could order Secretary of State to check all ballots rejected because voter was not registered IF all other categories were met.
    Of course, this will almost certainly benefit Franken as Democrats had a big voter registration drive that accounts for lots of the first time registration by voters.

  3. Submitted by Eric Paul Jacobsen on 02/17/2009 - 09:32 pm.

    Here’s an excerpt from the text of the Bush v. Gore decision:

    “The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. OUR CONSIDERATION IS LIMITED TO THE PRESENT CIRCUMSTANCES, for the problem of equal protection in election processes generally presents many complexities.”

    The capital letters are of course my own emphasis.

    Any attempt to treat the case of Bush v. Gore as somehow “precedent-setting” for Minnesota today has to deal with this text.

    I happen to find the Bush v. Gore decision highly faulty — and not only because it helped the “wrong man” into the office of the Presidency. It is faulty because it preferred the grim egalitarianism of the election night’s first count — equality achieved by disenfranchising every voter whose ballot was imperfect in the slightest way — over the more deliberate, yet still imperfect egalitarianism of the human-managed recount.

    I am FOR human-managed recounts, provided that the effect is to enfranchise rather than to disenfranchise voters, and provided that there are strict laws to guide the judgments of the counters. Of course, some individual judgment is always necessary and cannot be pre-empted by law, because the law cannot be perfect, either. The best we can do is count as as many votes as we can, as fairly and as accurately as we can, so that every voter gets only one vote.

    I am even willing to welcome Norm Coleman’s legal challenges, since they tend (for the moment at least) to enfranchise rather than to disenfranchise voters. I say, let the enfranchisement continue, but let it be done fairly and consistently. Let Coleman win if he does. But above all, let’s get the count done so well that nobody will DARE suggest that the intervention of the Supreme Court (God forbid) would somehow improve upon it.

  4. Submitted by Hiram Foster on 02/18/2009 - 08:07 am.

    As I see it, a major problem with applying equal protection arguments to the recount is that it gives constitutional protections to things rather than people.

    As a voter, I have a right to have my vote counted, and that right shouldn’t depend on whether some other ballot similar to mine is discarded by some election official. How can my right to the equal protection of laws cancel out my right to vote? If that were a possibility, where to I go to waive my right to equal protection?

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