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Week Four of Senate recount trial: Coleman seeks to re-examine entire universe of ballots

It was another whacky week in Court Woebegone, where the only women are judges and clerks, where the men are increasingly rumpled and where some of the arguments are deteriorating to below average.

A good example punctuated the end of Week Four and Month One of the Al Franken-Norm Coleman election contest.

It came at about 4 p.m. today when Coleman’s lawyers argued that an agreement they signed earlier this month should be broken because, well, the three-judge panel ruled against them in another matter, and well, things have changed, and well, they don’t like it, so, the agreement has to be broken.

Besides, the Coleman side argued in yet another legal document filed later today, that some votes that have already been counted must, logic suggests, should maybe be uncounted. 

Or, better yet, Judges Elizabeth Hayden, Kurt Marben and Denise Reilly should re-examine all 270,000 absentee ballots to make sure they were legally cast.

As Coleman lawyer Ben Ginsberg puts it, “The judges must remedy the situation.”

But before we talk about “the situation,” let’s review where we stand after 20 days of testimony and the wanton murder of thousands of trees so that countless legal briefs could be born.

For the first three weeks of this election contest marathon, we (and others) wondered when Judges Hayden, Marben and Reilly would decide something . . . anything.

And, then, quick as NBA point guards, the judges not only began deciding, but were as definitive as can be.

Just a week ago, they trimmed a batch of absentee ballots categories and at least 1,000 votes from the universe of potential Coleman ballots to be included in the count.  It’s now clear that 1,000 have ballooned to more ballots tossed aside.

Ginsberg has since branded that the frightening “Friday the 13th” ruling.

It was an omen of where they were headed and a signal of their increasing impatience and desire to move this trial along.

‘Friday the 13th’  order

Because of that ruling, they were legally challenged by Coleman’s side when it swiftly asked the judges to reconsider that “Friday the 13th” order.

No way, no how, the judges replied quickly and clearly. We’re sticking by our guns.

Then, Thursday, in an efficient ruling on whether Coleman could call an unqualified statistician as an expert witness, the judges dropped this declarative sentence.

“The Court will be reviewing all ballots presented according to the uniform standard contained [in Minnesota law],” they wrote. “It is irrelevant whether there were irregularities between the counties in applying [Minnesota law] prior to this election contest.”

Irregularities between counties is all that’s left of Coleman’s election contest case.

The point being:  After Week Four, no longer can critics claim their honors are slow on the uptake. To the contrary, they’ve been so clear that Coleman has taken his case to the so-called court of public opinion and to the 21st century Web echo chamber.

Ginsberg has been particularly harsh linking the judges’ ruling with the placing the election “in doubt” and saying “Minnesotans can have no confidence” in the outcome. All because of the judges. Right there into the microphones and cameras.

As the rulings come in court and as the Coleman side doesn’t like them, the in-public missiles are flying outside Courtroom 300 into sound bites, news stories and the blogosphere.

The judges can’t defend themselves, of course. But they are in a demographic that reads newspapers and – dare we say – Web news sites. They might even be sent links to stories by other judge pals who know how to use email. One can only assume they are fuming in their robes at the verbal Molotov cocktails being tossed their way by a Washington Beltway dandy.

In Week Four, we began to see the Coleman’s side strategy morph into an appeal mode. Ginsberg denies that, but why else repeatedly raise issues that these three judges have already flatly denied?

This non-lawyer has sat through the historically important and tedious trial and said, from time to time, “You know, sometimes I think that Ginsberg fellow and Coleman’s trial guru Joe Friedberg make some sense. There are some goofy votes in this count and some not counted.”

But you know what? The jury here isn’t a group of laptop-stained wretches. The jury is the three tireless judges who – between thousands of exhibits and hundreds of pages of memos – must be surfing Orbitz for a good rate on a long vacation.

Friday was a fitting ending to the Month One in Courtroom 300. The day began with a grandstand play by the Coleman side to fiddle with the 933 votes counted at the State Canvassing Board on Jan. 3.

It came in the form of a motion on paper.

Lawyers argue on

As the day wore on, and county auditors testified, the collegiality that permeates the trial carried on. Lawyers from both sides want their senator-elect to win. But it’s all so cordial. Ridiculously cordial, really.

But the afternoon’s argument was not.

In a stinging monologue to the judges and to the men sitting at Coleman’s lawyers table to the right of him, Franken lawyer David Lillehaug let it all hang out.

It centered on this dispute about whether the 933 votes that were counted by the State Canvassing Board should somehow be examined and, perhaps, uncounted.

On Feb. 3, both the Franken and Coleman lawyers agreed that the 933 were part of the count and the judges signed off on that. It’s called a stipulation.

“It doesn’t get any more solid and solemn and more important than that,” Lillehaug said, adding that Coleman side is now saying, “We just didn’t envision that the court was going to do what it did. That doesn’t make any difference at all…It doesn’t make any difference if you are in Small Claims Court, Conciliation Court or whether you’re a former United States senator,” a deal that’s made must be kept.

Then, his voice almost shaking, the usually calm Lillehaug said: “I think I know what’s going on here. I’m not going to say much about it. But this is the next step of an attack on the integrity of Minnesota’s election system. I believe this is a step toward an attack on the legitimacy of this proceeding.”

It was scathing and it was serious. And it led one to think, as Month Two begins next week, what is the Coleman side really doing? What does Coleman want?

In its memo filed late today, lawyer James Langdon writes that the judges must apply the same standards of their Friday the 13th ruling on the “thousands of absentee ballots already opened and counted on Election Day.”

On all 270,000? How?

Ginsberg says that’s up to the judges.

And on the 933, too. How? To uncount them?

Are they positioning themselves for a new election? A do-over? Do they really think Minnesotans want that? Or that these judges will conclude that’s the way to go?

Is it all about raising money for the Coleman effort? Ginsberg said no today, but Politico reported otherwise.

Or are they just preparing for a Franken win and, so, beginning to demean this process and, by association, Franken himself, to render his Senate years “invalid.”

Is that what’s going on here? This voter hopes not.


From time to time, we’ve been awarding silly honors for the “Zinger of the Day” or the “Zinger of the Week,” But it’s time to get profound and direct. Franken’s lawyer was the most direct this week.

Marc Elias said this: “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.”

Elias told me he wasn’t challenging the Coleman side, but he was.

Where are there the votes for Coleman to beat Franken? Franken has a lead of at least 225 and more. It hasn’t wavered at this trial.

Ginsberg says Coleman votes are out there in those wrongly rejected absentee ballots. Where? He says, in response to Elias’ challenge, if they brought in 226 they’d be accused of  “cherrypicking.” No, they wouldn’t. Because Franken has more votes in the pipeline, too.

Before the end of Month Two, we predict, the real jury —  Hayden, Marben and Reilly — will have to come to some decision.

The three judges will  have to weigh the preponderance of the evidence. Is it possible they will say, after hearing all this testimony and listening to all this lawyering: “We evaluated the work of 87 counties, and the Minnesota Supreme Court and the secretary of state’s office, the two campaigns and the State Canvassing Board. They were all wrong. They all screwed up. We overturn this election.”

Will they conclude that?

Or will they say: “You know, Minnesota, we heard testimony about some goofy stuff happening. In our humble opinion, the absentee ballot procedures need to be fixed big-time. But, you know what? Sen. Coleman never showed us 226 votes.”

Now that they’ve shown their decisiveness, it’s time for the judges to reveal some personality.

I say take off those ghastly robes. Put on nice red and blue T-shirts.

On the front, the shirts should read:  “Mr. Ginsberg . . . “

And on the back, in bold lettering, they should read: “Show us your 226.”

That might render the Washington public relations lawyer speechless. On the other hand, he might just lock and reload.

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


Comments (5)

  1. Submitted by Jim Bullington on 02/20/2009 - 08:35 pm.

    I was just curious, but is Coleman going to ask that the votes from the Iraqi election be included too? Not that he would gain any more votes

  2. Submitted by Pat Lowther on 02/21/2009 - 08:40 am.

    Thanks for covering the recount trial not only with humor but also with respect for the legal system. It’s all we have to solve very sticky problems, so degrading it damages a fundamental foundation of our society – justice. Your article was appropriately irreverent without being demeaning.

    A piece on MPR this past week attempted to bring humor to the trial also, but the overarching theme of it was negative and served only to debase the the entire process.

    For some reason I find my browser going to your website more than others these days, except for, of course, a staple of all who desire to stay infomed directly from the source – the trial itself.

    Keep up the good work.

  3. Submitted by Regina White on 02/21/2009 - 09:02 am.

    You say the judges are no longer “slow on the uptake.” From your lips…
    From my faraway observer’s perch, this thing is still slow on “The Uptake.” I want to see something like a directed verdict of acquittal of the Minnesota election system soon.


  4. Submitted by David Brown on 02/22/2009 - 05:14 am.

    Outstanding piece!

    Thank you.

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