UPDATE: Hallelujah! The universe contracted today.
Under the wing-tips of legions of lawyers and the black robes of the three-judge panel, the Recount Earth shook today.
The heavens opened and 4,797 absentee ballots fluttered out of the Minnesota electoral sky onto the Al Franken-Norm Coleman election contest trial.
On the face of it, Coleman’s side scored a tidy victory. Nearly 5,000 absentee ballots that were out of the picture before this trial started last week are back in the picture, the judges ruled.
Al Franken’s legal team didn’t want that. Not now.
So, 4,797 absentee ballots returned to the universe of evidence in this nationally watched case.
Still lots of uncertainty ahead
Caution, though: In the end, many of those votes probably won’t be counted.
But they are now officially evidence that Judges Elizabeth Hayden, Kurt Marben and Denise Reilly will consider for eventual counting.
On the other hand, Franken’s side got the stone-faced judges to narrow the ways in which ballots can be counted.
And later tonight, the judges handed the Franken side some more good news: Coleman’s effort to bring the specter of “Bush v. Gore” into this case has been set aside for now. The panel said basically that Minnesota isn’t Florida and that our election rules are clear.
That opinion dovetailed with the earlier one about the new universe.
For instance …
If you, Mr. or Ms. Voter, are among the 4,797, and you cast your vote by absentee ballot but you royally screwed up — like, say, didn’t sign it, or you voted in person, too, or you weren’t registered — your vote still won’t count.
No ifs, ands or buts, the court order seems to say.
But if an election judge happened to discard your vote by mistake or the lady at the counter who took your absentee ballot forgot to tell you to sign in … your vote just might count, the same court order seems to say.
Indeed, no more “The dog ate my ballot” stories from Coleman or Franken voters.
The votes in this new universe will only be counted if they were previously rejected through no fault of the voter.
If there is some murkiness to the judges’ order, what’s clear is that we now face the examination — somehow — of nearly 5,000 ballots.
And probably 771 more. (That’s how many Franken’s side has wanted to have included in this trial, too.)
Judges Hayden, Marben and Reilly will have to decide how to go about examining 5,500 votes.
Bottom line, recount fans, as Franken lawyer Marc Elias put it: “The universe has now come to a defined place with respect to Senator Coleman’s case.”
It can be said that, on the Seventh Day, the judges created a manageable “bread box,” as Elias called it.
They also made that more substantive decision this evening.
If the 4,797 ruling was about evidence, the “Bush v. Gore” order was about the law.
The judges denied Coleman’s “Motion for Summary Judgment,” a pre-trial motion. A key element of Coleman’s position was that the monumental 2000 Bush v. Gore case applied to the Coleman v. Franken case.
These three judges said in effect: “Not yet. Not now. Sorry.”
In that case, the U.S. Supreme Court ruled that Florida didn’t have “specific standards” in counting ballots.
But Hayden, Marben and Reilly wrote in their 11-page ruling that the legal standards in Minnesota – with detailed reasons for accepting or rejecting absentee ballots – “distinguishes the election systems of Minnesota and Florida.”
They wrote that Minnesota’s Legislature enacted “clearly and unambiguously” a standard for counting absentee ballots.
Or as Franken lawyer Elias said: “I have always said that Minnesota is not Florida. It has always been our position that Minnesota is colder … No, I don’t think there’s any comparison here between the election code and the administration of elections here and in Florida.”
The Coleman side has been raising this notion of “equal protection” for a while. The concept: If a vote was accepted or rejected a certain way in Washington County, then it must be accepted or rejected the same way in Ramsey County.
“You got to even that out, you’ve got to treat those ballots the same,” Coleman lawyer/spokesman Ben Ginsberg said Tuesday night. “And I don’t think there’s anything in the court’s order saying they’re not going to do that … There has to be elementary fairness.”
Basically, Ginsberg said, the two decisions went “hand in glove”: that, rather than take sweeping categories, each ballot that’s in question will be evaluated individually.
Turning point? Hard to say yet
Of the narrowing of the universe, was this a turning point? Critical juncture? Moment of truth? Predictor of outcome?
“I think it’s overly dramatic to say it’s a turning point,” said Elias, who once promised “Law & Order” type drama and a “cliffhanger.” (So far, the theater’s been lacking, sir.)
But Coleman lawyer/spokesman Ben Ginsberg called it “a victory for the people of Minnesota whose ballots have not been counted.”
Elias noted that his side wanted Coleman’s universe to be at 654 votes to examine. Coleman was up in the 11,000 to 12,000 range.
The judges’ number of nearly 5,000 sure sounds as if it tilted toward the Coleman side.
But by simple math, Elias noted that 4,797 is “closer to 650 than it is to 11,000 … It’s neither a loss or a win.”
Here’s how it went down …
Early this afternoon, the judges issued an order. It’s at the top of the court’s page here.
It responded to a Franken legal motion to limit the number of ballots that Coleman wanted reconsidered. Trial observers have been waiting for this ruling for a week.
Franken wanted the “universe” of ballots for this court and this case to be frozen at the 654 votes that Coleman earlier sought.
The judges limited Coleman to a different number: 4,797. A list of those voters’ ballots was revealed to the Franken side on Jan. 23, the judges wrote.
In a recount of moving numerals, 4,797 is now the number du jour.
But when the judges put their six feet down, they said they will only consider re-examining ballots that were not rejected because of the four statutory reasons: voter signatures don’t match with applications and ballots; a voter wasn’t in the correct precinct; the voter wasn’t registered; or the citizen also voted in person on Election Day.
No other nuanced categories — as proposed by the Coleman side — will be considered, it seems.
“We look forward to Senator Coleman being able to prove not ‘might-be,’ ‘could-be,’ but those actual individual votes within that universe that were wrongfully rejected,” said Elias. “I think that will be a relatively small pool, as we’ve said all along.”
New procedures unclear
Will 5,500 aggrieved voters all have to come to the Minnesota Judicial Center, walk up the marble steps and talk about how they — or that darned election official — botched their ballot?
Will they all have to face blistering cross examination from the likes of Coleman’s Joe Friedberg, who does murder stuff more often than election stuff, or Franken’s Kevin Hamilton, who has shown himself to be adept at tripping up Coleman witnesses.
Remember as Deputy Secretary of State Jim Gelbmann said last week: “Every ballot tells a story.” Can this trial go on for 5,000 stories?
“Senator Coleman has some very good lawyers,” said Elias. “I’ll leave it to them to figure out what they’re going to do by way of individual voters.”
There could be ways to streamline the examination. Perhaps the judges, away from the lawyers, could take a day or two to look at the face of the absentee ballot envelopes and the reasons proffered by both sides.
But the original ballots may have to be sent down from the 87 counties. And all the county auditors may have to testify. And by the time it’s over, Minnesota’s only senator, Amy Klobuchar, may be starting her 2012 campaign.
“It seems to me they are doing a diligent job of wanting to look at all the ballots,” Ginsberg said of the judges. “Or they may, or the parties may, agree on a quicker way to do it.”
These so-called parties sitting down for tea and agreeing 4,797 times? Fahgetaboutit.
In December, when county election officials culled their absentee ballots for the State Canvassing Board, the 87 counties came up with 1,346 votes.
When all is said and done, could our wonderful recount universe get that small again? Or will it defy laws of physics, politics and law and expand once more?
Here’s the biggest question not recently asked: whatever its size, will the senatorial universe — his since Jan. 5 – still belong to Al Franken when this trial concludes?
Or will Norm Coleman, on the strength of the 4,797 ruling today, take some of that space back?
The Herculean legal struggle continues Wednesday, with the Recount Earth in a different place.
Jay Weiner can be reached at jweiner [at] minnpost [dot] com.