Week five of Coleman-Franken trial: Has Coleman proved his case?

Joe Friedberg, Tony Trimble, Norm Coleman
AP Photo/Jim Mone
Former Sen. Norm Coleman, right, looks on as his attorneys, Joe Friedberg, left, and Tony Trimble read a court order during a court delay before the start of the Senate vote recount trial Thursday.

Gnawing questions hovered above the Minnesota Judicial Center today as Week Five of the Norm Coleman-Al Franken election contest trial ended.

The biggest question: As Coleman’s lawyers prepare to rest their case Monday, have they proved anything?

After all, the legal burden is on them to convince the three-judge panel that Al Franken’s 225-vote recount victory should be overturned.

Have the judges been taken far enough down that path?

Another biggie: Can votes that have been counted be uncounted?

That notion was at the crux of the major legal argument today before Judges Elizabeth Hayden, Kurt Marben and Denise Reilly.

It was triggered by a legal motion that Coleman’s side filed. Coleman’s lawyers sought to have the judges examine all 280,000 absentee ballot envelopes, not just the wrongfully rejected ones. Big problem: the 280,000 ballots are now votes, already counted and unable to be matched up with their respective votes.

This idea has been the subject of a public relations battle in the hallway outside the courtroom for the past 10 days or so. But it finally reached the judges’ ears today.

It’s fair to say that, in particular, Judges Marben and Reilly revealed great skepticism of Coleman lawyer James Langdon’s point of view. Franken’s lawyer, Marc Elias, with his typical passion, kicked some legal butt today in arguing against such a notion. He even ridiculed the Coleman side for changing its strategy towards the end of their case.

Next question: Let’s review here… What is the actual role of these three judges and, when all is said and done, how could they rule?

Can they order a new election? No. Could they order another recount? Well, maybe, but what would that mean?

What can we expect in a couple or three weeks when this case closes?

Finally, there’s the mother of all questions that hang over this trial: Are all elections seemingly this muddled?

How is democracy faring so far, as Week Six is set to begin and Franken gets set to put on his case to preserve his recount victory?

Proof
As MinnPost has reported often, the Coleman side has shown that different counties and different precincts evaluated, counted and rejected similar absentee ballots in different ways.

It is possible that your absentee ballot in Hennepin County without a registered witness was counted while a similar ballot in Carver County was not.

That sounds wrong. It feels wrong.

But, guess what? Coleman hasn’t brought specific ballots and votes to the judges to show them that.

We wrote about this just a week ago: Franken’s ahead by 225; why hasn’t Coleman brought in 226 votes to prove there are enough out there to undo the recount?

Another major claim going into the trial was the alleged double-counting of votes. Again, there’s been testimony that suggests that it could have happened, may have happened.

But it hasn’t been proven. And the star witness on this, Minneapolis election judge Pam Howell, has seen her testimony tainted by repeated mistakes made by the Coleman lawyers.

Her earlier testimony this week was stricken by the judges, then allowed. Today she was to testify again, but it was discovered that Coleman’s lawyers for a second time didn’t’ disclose the existence of certain emails between Howell and Coleman’s legal team. It was a repeat offense on procedural grounds. Franken’s lawyers jumped on it.

Howell still hasn’t fully testified or been fully cross-examined. And, as we speak, the judges are pondering whether to allow her to testify.

Let’s just say that claim of double-counting is teetering.

A final key claim was the so-called lost 132 Minneapolis ballots.

That was resolved this week when the Coleman lawyers acknowledged the ballots once existed and were lost. All they’ve held back on is how many ballots there were.

For this virtual member of a virtual jury, Coleman hasn’t shown — yet — that the preponderance of the evidence can push the judges to overturn the recount.

But they have a day to go.

Uncounting
The now legendary “Friday the 13th” ruling of two weeks ago has haunted the rhetoric in the court of public opinion since then.

The Coleman side has been saying that the judges barred categories of absentee ballots that — before the start of the trial — were already part of the election tally.

Finally, Coleman lawyer James Langdon uttered the same message in court.

“Contestants view that Your Honors February the 13th ruling ought to be applied to all absentee ballots…and not merely to the rejected absentee ballots that are in question,” Langdon said. “The law is the law is the law…All absentee ballot votes cast on Election Day…have to be treated precisely the same.”

The message: dive into all 280,000 absentee ballots on Nov. 4 and figure out how to match them up with the court’s ruling of Feb. 13.

There were furrowed brows staring down on Langdon from the trio of robed ones. Judge Marben, who has been economical with his words in court, couldn’t wait to challenge Langdon, in the polite way you’d expect a jurist from Thief River Falls to ask.

“How can we undo something once these votes have been cast and counted?” Marben asked. “We’re not going to be able to tie ballots to particular absentee envelopes.”

Langdon replied thusly: “I realize that your honor, but the fact that a remedy is challenging and perhaps difficult doesn’t mean that it can’t be done.”

He recommended so-called “pro rata reduction,” a math formula that would somehow theoretically calculate votes from different precincts, a process that Judge Reilly questioned as part of Minnesota law.

Elias, Franken’s lawyer, was unapologetically baffled and angered by the Langdon position. Elias went on a legal rant.

“I am frankly almost without words, which is rare, very rare, I’m almost without words to know quite what to do in response to this motion,” Elias said.

Then he found words somehow and hammered away.

Why didn’t Coleman’s side seek an examination of all the absentee ballots months ago? Why did they only first seek 654 rejected ballots and then about 11,000? After five weeks of a trial, why did they only talk about improperly rejected ballots and not 280,000 accepted votes until today?

“I couldn’t even begin to tell you which ballots out of the 280,000 ballots that were cast by absentee they believe were illegally cast,” he told the judges. “I don’t think they know.  I think they want is we’ll sort of take all 280,000, put them on a big forklift, we’ll take them, we’ll plop them here in the courtroom and then the court will do something.”

He accused the Coleman side of using the Feb. the 13th ruling as “an excuse” to re-order the case and move it from the topic of improperly rejected absentee ballots to accepted votes.

As for asking the court to “fix” the Feb. 13th ruling on its own, Elias said that’s because the Coleman side doesn’t have a remedy:

“Instead they wish to simply cast doubt on this process as it comes to the conclusion of their case,” Elias said, glaring at the Coleman table as he sat down at his.

The judges will rule on this soon. Don’t bet against Elias on this one.

The judges
But this leads to what Hayden, Marben and Reilly are here to do.

Minnesota law states: “The only question to be decided by the court is which party to the contest received the highest number of votes legally cast at the election and is therefore entitled to receive the certificate of election.”

For sure, we know that some additional votes will be counted. Exactly how many remains unclear. But Franken backers, called “the Nauen 61” because they are represented by Minneapolis lawyer Charles Nauen, could amount to at least 40 more votes for Franken. Others are floating around in the case. The judges still have decisions to make on other sorts of ballots.

Still, it’s unlikely, when all is said and done, that more than — say — 300-400 eventually counted votes will be ordered by the judges. That’s just an educated guess.

Once they are, the diligent judges can declare Franken the clear winner or, more conservatively, simply say Coleman hasn’t met his burden.

In talking with some legal scholars today, there doesn’t seem to be anyway the judges could order a new election.

So, it’s only a matter of time before Hayden, Marben and Reilly will have to make an historic decision; by Monday they will have heard all the Coleman team can throw at them.

The system
It could be that this case won’t be remembered for its uncertainties but for this certainty: Minnesota needs to clean up its absentee ballot act; Minnesota local election officials need to be better trained; and as Secretary of State Mark Ritchie has proposed, Minnesota needs to institute early voting.

In five weeks of trial, sometimes democracy isn’t very pretty.

As William Mitchell College of Law elections expert Raleigh Levine told MinnPost today: “It’s sort of like the proverbial sausage factory. You don’t really want to see it being made up close.”

A ballot here rejected. An exact ballot there accepted. Ballots lost. Ballots found.

Still, said Levine, “I do think we should take heart from its relative accuracy. This is so rare for an election to be this close… Given the nature of the system, I think that Minnesota has a pretty good process.”

Sometimes, watching the trial, it doesn’t feel that way.

“There is no such thing as a perfect election,” said Professor Edward Foley of Ohio State, “no election that’s error free.”

He has written about the conceptual “optimal election… you can’t have perfection, so you need some standard of optimality,” Foley said. “Like GE, when it makes a light bulb, has an acceptable error rate, you know six light bulbs per million, something like that… But with democracy, we don’t even know how to measure this.”

Here’s one way to measure it: Saturday will mark eight weeks to the day that Coleman’s term ended and no one has sat in the second Minnesota Senator’s seat at the nation’s Capitol.

Next week will mark a full four months since Election Day.

Meanwhile . . .
There’s now a kerfuffle about how and how much local election officials should be compensated for testifying at the trial.

Duluth’s elections clerk wants the city to be paid about $1,000 for his one day in court, compensating the city for his lost time.

The judges heard arguments on that today and are expect to rule shortly.

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

Comments (8)

  1. Submitted by Alyce Bowers on 02/27/2009 - 08:53 pm.

    Really good summary of where we are. Enjoy your columns very much.

    I agree that there are probably less than 1,000 absentee ballots that could end up being counted. The only large pile of potentially valid ballots would be the ballots rejected because voter was not registered. Since a majority of these voters got a voter registration card in the mail, it is probably safe to assume that a majority filled it out and returned it, but in the wrong envelope.

    So if we say that 800 of these exist, you still have the problem of all the other requirements to fulfill. The biggest obstacle will be the “Registered Witness” which will certainly be checked this time. Since these voters were NOT registered, their friends may not have been registered either when they witnessed ballot. So say 600 make it through all the hoops to count-me day.

    Then there were the 400 or so wrongly rejected ballots that the lawyers threw out – poor Supreme Court ruling gave them the right. Franken will get at least 200 of these back in. Coleman might have convinced court of another 100.

    So grand total 600+200+100=900 as outside limit for counting. Can Coleman get 600 votes to Franken’s 300 for net 300? (Remember Franken has 40-50 votes from outside group challenge. His real lead now is nearly 300) Sure, Coleman could do it and I could win the lottery. Will he? NO.

  2. Submitted by rick plunkett on 02/27/2009 - 11:17 pm.

    Imperfect elections are to be expected. Voters made mistakes filling out absentee envelopes and applications. Volunteer poll workers made mistakes accepting some of the associated ballots. But shall we adopt the mistakes of volunteer poll workers as a new legal standard for counting votes? A felon voted in the last election according to a recent article in the Pioneer Press. His ballot is among the 3 million in the vote totals. So, shall we count the votes of felons among the absentee ballots before the court? No, we follow the law.

  3. Submitted by Susan White on 02/28/2009 - 09:50 am.

    Carver County cjecked witness registrations and rejected some ballots when there was no witness registration. Other counties did not check witness registration. Consequently, SOME of the ballots in those counties MIGHT have no witness registration. But Coleman must prove that. The situations are not comparable.

    Also, why did Howell Not call elections officials but instead called the Coleman campaign lawyers? And why did she say she called because she was frustrated? She was a polling official and does not remember writing about this major election error in her incident log. Why?

  4. Submitted by Paul Brandon on 02/28/2009 - 09:52 pm.

    I think that Coleman (or the GOP moneybags that are pulling his strings) has proved that he does not have a case, since he has still presented no specific evidence of illegally counted or rejected ballots.
    This is all clearly a stall to preserve the Republican filibuster as long as possible.

  5. Submitted by karl karlson on 03/01/2009 - 01:20 pm.

    we’re tired of this. norm was a good mayor. he should have stayed mayor instead of being a bushite. now he can’t accept he’s lost. well, as they said in the past, get over it.

  6. Submitted by Alyce Bowers on 03/01/2009 - 01:52 pm.

    Why must the witness be a registered voter in Minnesota? I keep coming back to this issue. I think this is the ONLY part of the Coleman case that actually makes sense.

    I reread all the filings on the Friday 13th rulings. The question of “Must a witness be a registered voter in Minnesota?” was never directly posed. The court instead asked if a notary had to put a notary seal on the ballot for it to be official. And the Court, Coleman and Franken all AGREED that YES, the notary had to put on a seal. Otherwise he/she was just a regular witness and would have to be a registered voter. So this whole witness must be a registered voter came in the back door.

    But this is where it gets tricky. Because the legislative statutes do NOT even say a ballot must be witnessed! Remember the four piles for rejection? This was NOT one of them.

    The whole “registered witness” thing seems to have been promulgated by the Secretary of State’s office. When? By whom? Apparently it was thought to provide protection against voter fraud. Republicans favorite bug-a-boo.

    And the ruling says, in passing, that a witness MAY be any registered voter. Moreover, hardly any of the counties checked to see if the witness was registered. Since they do NOT have computer access to the statewide database of voters, they really cannot check. A lot of witness testimony on this point.

    So legal minds, if the administrative ruling says the witness MAY be any registered voter, is that the same as saying the witness SHALL/MUST be a registered voter? Or MAY it be anyone else?

    I am beginning to think this falls into the same category as the ballots where the dates of the witness signature and dates of the voter do not match. There is NO requirement for a DATE, so who cares if they do not match.

    And here is an area where the court could actually fix the problem. They could say that any absentee ballot that was valid in every other respect except for the “witness not registered” would be allowed. Coleman had over 100 of these from Carver which would help his case, but Franken is going to now have a bunch of these when they sort through the 1,500 “No voter registration” and find a card inside.

    Please give us an opinion.

  7. Submitted by Alyce Bowers on 03/01/2009 - 08:25 pm.

    I stand corrected on witness. There is a statute that states a witness SHALL sign a statement that the voter certificate is correct and it states a witness who is a voter registered in Minnesota, or a notary public, or a person who can administer oaths.

    But I still think this is a dumb requirement that was seldom enforced and should be changed. How is an election worker going to check if a witness is a person allowed to administer oaths?

    And the VOTER is the one who swears he/she did everything right so why require a witness who is NOT allowed to actually witness the voter’s vote?

    Would love to know how this legal hurdle got stuck in the absentee ballot law.

  8. Submitted by Dave Thompson on 03/02/2009 - 01:54 pm.

    I agree the absentee voting process needs to be cleaned up, but I am no fan of early voting. If you don’t qualify for an absentee ballot under the current rules, stand in line with the rest of us. If it ain’t broke, don’t “fix” it.

Leave a Reply