Update: Coleman-Franken contest: The ‘universe’ contracts, trial could expand, mechanics remain mysterious

Joe Friedberg
Pioneer Press/Ben Garvin
Coleman attorney Joe Friedberg questions Kevin Corbid (not pictured), Washington County director of property records and taxpayer services, during Tuesday’s trial session.

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.

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Comments (5)

  1. Anonymous Submitted by Anonymous on 02/03/2009 - 07:35 pm.

    I don’t understand how the court came up with the magic number of reviewing 4,797 absentee ballots. What was their criteria to determine this amount to review? And which absentee ballots will they review? What counties will these absentee ballots come from?

    If the court wants to insure a fair process, evidently agreeing with Coleman’s argument, why 4,797 and not all 11,000? Shouldn’t it be all or none? Couldn’t Coleman later argue that 6,203 ballots were disqualified, thereby denying him the opportunity to review all ballots? Could this become another court challenge? Couldn’t this process be dragged out for years? Will the case eventually go the
    U.S. Supreme Court like Bush V. Gore?

    Isn’t this a stupid way to elect a U.S. Senator? Shouldn’t Minnesota adopt a runoff (like what Georgia did) for the top two candidates for any statewide election, even though it may cost more? It would eliminate the annoying third party candidates who end up draining votes and never get a majority (except for Jesse, who was the experiment to the rule and Minnesotans learned that lesson).

    Or why don’t we job share the Senate seat?
    Coleman could be the U.S. Senator on Monday and Tuesdays, Al Franken on Wednesdays and
    Thursdays and Dean Barkley on Friday. For any voting to take place on the Senate floor and major legislation, all three would gather in advance and determine how the Senator of the day would vote. A 2-1
    would determine how the Senator of the day would vote. We could at least do this job sharing until the Courts decide who is the real Senator (which could take years at this rate). At least then, Minnesota, would have another vote in the U.S. Senate.

    It seems like President Obama would like to have that seat filled so voting can commence on major legislation, like the Stimulus bill.

    In the meantime, we are counting votes again, and again and again. Isn’t this the third time? If Franken comes out on top in the court challenge, how long will Norm drag this out (not that Norm doesn’t have the right to do this, but how long will it be to the detriment to the people of Minnesota)?

  2. Submitted by Alyce Bowers on 02/03/2009 - 07:48 pm.

    I think you meant to say the “judges will only consider re-examining ballots that were NOT rejected because of the four statutory reasons:
    Clearly, if they were rejected for valid reasons, then they will be rejected yet again…Right?
    Apparently this ruling only allows these ballots to be entered as evidence and they will be considered ONLY if Coleman wins his case when a review of them may be ordered by the court as part of a remedy.
    Where does the trial go from here?
    Obsessed viewer

  3. Submitted by Eric Ferguson on 02/03/2009 - 11:01 pm.

    No, we’re not counting votes again and again and again. The absentee ballots in question haven’t been counted yet. It sounds like Coleman wins another review of these ballots and since he loses without another review, that’s a win for him. However, it’s still a Hail Mary pass, because absentee ballots have favored Franken, and Franken will likely get the ballots he wants reviewed too, which his lawyers probably think will lean heavily towards Franken. It’s probably a wash, but no way to know. It sounds like Coleman hasn’t made headway on the double counting, so this is probably his shot, aside from an appeal based on equal protection to have the recount thrown out.

  4. Submitted by Burton'Jon Blackwell on 02/03/2009 - 11:49 pm.

    Clearly lost this one at the polls. An unbias group of his fellow Minnesotan’s recounted in the fairest possible way and Franken won this recount. We are now very ashamed that Coleman is now claiming that his fellow Minnesotan’s are an incompetent bunch of bunglers. According to way Coleman thinks…Arizona won the Super Bowl and should sue the NFL because the receiver’s right foot didn’t come down in the end zone…it was actually one sixteenth of an inch off the turf as he fell out of bounds and the Supreme Court will reverse the outcome if they take a closer look. Coleman’s fellow Minnesotan’s arn’t good enough to determine the outcome of their election. Norm Cloeman! shame on you you’re denying us representation in the Senate at a time when every vote is crucial to our country’s future. Go do your loser dance somewhere else!


  5. Submitted by Jeff Klein on 02/04/2009 - 08:34 am.

    Were these ballots specifically singled out by the Coleman campaign? Because if that’s the case, it seems like Franken may ALSO want to include more absentee ballots, maybe pushing for counties he won or something. And let’s remember: last time there were more absentee ballots counted, Franken GAINED votes.

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