Coleman-Franken trial notebook: As we await some rulings, a few odds and ends …

Some dribs, drabs, dots, dashes, and details from MinnPost’s notebook on the Al Franken-Norm Coleman election contest …

More papers to file
Yes, the testimony is over, but both sides in the U.S. Senate election contest have documents to file.

They are the “findings of fact,” a host of facts that each side believes it proved during the course of the trial. They are due to be delivered to Judges Elizabeth Hayden, Kurt Marben and Denise Reilly Tuesday afternoon.

The judges will use those as guidelines for their own thinking and rulings going forward.

During the course of the trial, weekly findings of fact have been filed with the court. They are not made public, and neither side has shared its documents with the media.

But we know this: The Franken side’s findings have been far more voluminous than the Coleman’s side. We hear that one week, the Franken side had nearly 100 pages of findings of facts; the Coleman team, four.

Donations the old-fashioned way
In the aftermath of Norm Coleman’s website being compromised and donors’ credit cards exposed, there is something missing from the home page at that was there until last week.

It’s the “Donate” button once there to click on for supporters.

According to a notice on the Coleman site, supporters are asked to call or send money the old-fashioned way … through U.S. mail.

“We have raised nearly $25 million between the campaign and the recount, of which an exceptionally small fraction was raised over the Internet,” said Coleman spokesman Tom Erickson.

Football and the lawyers
Franken’s chief recount lawyer, Marc Elias, is a crazy New York Giants football fan. During recesses in the trial, he would discuss the Giants’ free-agency desires. He lives in Washington, D.C., but owns a Giants season ticket.

But Sunday night, Ben Ginsberg, Coleman’s chief legal spokesman, one-upped Elias. One of Ginsberg’s partners, DeMaurice Smith, was named the new executive director of the NFL Players Association, a job once held by the late and powerful Gene Upshaw.

Like Upshaw before him, Smith will likely spend a lot of time here in the Twin Cities; the key NFL free agency decisions have been made here under veteran U.S. District Court Judge David Doty.

Missed quote
Here at MinnPost we’ve tried our best to report the best quotes, quips and comments of the recount and trial. We missed one 10 days ago, and it might — might — be the lasting description of the trial … from a Franken point of view.

It came as Franken lawyer David Lillehaug sought to shoot down Coleman’s claim that some votes were double-counted in Minneapolis.

“I suppose if this case were in Texas, I’d say their claims are ‘big hat but no cattle,’ ” Lillehaug told the judges in his otherwise serious manner. “In Minnesota, I suppose we could say, ‘Big boat, no walleye.’ “

Only in a Minnesota recount trial would that work.

Vote tally
So, how many votes did Franken pick up so far during the trial?

Remember, after the recount, he held a 225-vote lead.

Franken’s lawyers claimed in court last Friday — and Coleman lawyer Joe Friedberg didn’t object — that they had proved 252 valid ballots should be opened. We must assume that the Franken side believes most or all of them are Franken votes.

Early in the case, the three judges granted Franken’s side 12 ballots to be opened; Franken’s lawyers proved those ballots should be opened in an early “summary judgment” motion.

Plus, Minneapolis lawyer Charles Nauen, representing Franken-leaning voters, won approval from the judges for 35 ballots to be opened. There are another 12 Nauen clients still seeking to have their ballots opened. That could add up to 47.

Also, the Franken side showed that in the recount, about 52 Franken votes went missing from the original count. If the judges rule that the missing ballots in the recount should be counted — just like the missing Minneapolis 132 — Franken could pick up 52 more votes.

So, it looks like Franken may have proved that more than 350 additional ballots should be opened and potential votes garnered.

If that’s the case and a vast majority of those are Franken votes, it’s increasingly difficult for Norm Coleman to catch up.

Indeed, by the standards already established by the three-judge panel, very few of Coleman’s 1,359 proposed ballots to be opened will be considered legal. Franken’s side claims only six of those 1,359 pass all the criteria the judges have laid down.

When the judges order that ballots from this trial be opened, that eventual count could lift Franken’s lead considerably … to 600? Or more?

What sorts of political pressure will that put on Coleman? Can he appeal if he falls that far behind?

Not giving up
Some observers thought Coleman was a bit tentative when he addressed the media Friday at the end of the trial. He didn’t declare that he would win.

But his campaign, under the able wordsmithing of Ginsberg, released a two-page document titled “As Trial Ends, Coleman Poised To Be Re-Elected.”

It detailed the key themes of the past month: that there are “illegal” votes already counted and tainting the tally; that the judges “changed the rules of the game after it’s been played,” the constant whack at the panel for narrowing the universe of legal ballots; that similar ballots were treated differently in different counties; that the state’s voter database is unreliable, so no one knows for sure who was registered on Election Day; that some votes were double-counted; and that missing ballots — such as 132 in Minneapolis — shouldn’t be counted.

It concludes that “unless all the wrongly rejected absentee ballots are opened and counted … the outcome of this election will remain in doubt.”

“Wrongly rejected,” in the Coleman side’s view is not the same as “legally cast,” based on previous Hayden-Marben-Reilly rulings.

But the document seemed to be a foundation for an appeal … assuming Coleman loses in this court and assuming he has money to go forward on an appeal.

Or will he have another job soon and call the whole thing off?

Silly editorial
The Pioneer Press weighed in with another head-scratching editorial Sunday.

They raise the notion that the election is a “virtual tie,” which is close to how Coleman lawyer Friedberg described it — a “statistical tie” — in his closing argument Friday.

But isn’t that what this trial was all about? State law required a recount. State law established guidelines. Lawyers have done their thing. Judges are doing their thing.

The Pioneer Press opinion writers then trot out an old and absurd idea: a runoff between Franken and Coleman. (They’d previously suggested a do-over.)

First of all, as the editorial notes, there’s nothing in state law for that.

Second, an election would cost about $4 million. Would you like another campaign? Ads, fundraising? Third, do you think there might be the chance of another recount in a face-to-face battle between Franken and Coleman?

“The winner of the Senate seat, whether ultimately it’s Coleman or Franken, will be he who happened to benefit the most from the errors, oddities and inequities of the count-recount-contest process,” the Pioneer Press opined. “We grant that democracy is a messy business. But this exercise in democracy has been messier than it might have been.”

Messy? Yes. Fair and square? I think so. Necessary fixes in the absentee ballot system? To be sure. A need for early voting in Minnesota? You betcha.

But the winner will be who the learned judges say got the most legally cast votes. That’s not a tie. That’s a conclusion after a marvelously tedious and painfully diligent recount and legal process.

What are we waiting for?
As early as late this week, the judges could identify the ballots they want opened … Within three to five days, those ballots, still in their counties, would be shipped to St. Paul … Soon after, staff members of the secretary of state’s office would count those ballots … Meanwhile, the judges will be working on and writing their final opinion and order on the validity of the election.

In the interim, we could see them address some of Franken’s motions to dismiss some Coleman claims, particularly the double-counting claim, which didn’t seem to be proved very well. The missing 132 ballots in Minneapolis haven’t been ruled on, either, nor has the question of signature mismatches on absentee ballot applications and ballots been ruled on.

Today is March 16. Will we have a decision by … April Fool’s Day?

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

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Comments (5)

  1. Submitted by Tim Walker on 03/16/2009 - 03:57 pm.

    Great summary.


    I needed my daily recount fix.

    I can’t stop cold turkey.

    C’mon judges, release a little bit each day to string this addict along, will ya?

  2. Submitted by Alyce Bowers on 03/16/2009 - 10:12 pm.

    Also to be ruled on are the 6 remaining categories NOT ruled on by Court in the Friday 13th ruling. And issues that came up at trial like whether changing apartments in same building required reregistration. OK How about in same precinct or same nursing home? When has an address changed so much you must reregister?

    If court rules that voter did NOT need to fill out an absentee ballot application – Category 9 of Friday 13th ruling – then Coleman might get in a lot more than 6 ballots, but enough more? Probably not.

    Will rulings come first or list of ballots to be opened first or simultaneously?

    By the by – just because there may be 300 more ballots opened does NOT mean that Franken gets ALL of them. I think a final lead of 400 for Franken is more likely than 600.

  3. Submitted by Maury Landsman on 03/18/2009 - 01:28 pm.


    Keep up the great reporting on this trial.

  4. Submitted by Larry Wall on 03/19/2009 - 10:08 am.

    The Pioneer Press editorial unfortunately misleads the public by characterizing that the leading candidate has his status only as a result of “luck-of-the-draw” – supposedly because the magnitude of human electoral process errors simply overwhelms a 225-vote lead.

    But that is not the case, because human electoral process errors are not biased more toward one candidate than the other. As a result, mistakes that affect one candidate tend, on average, to be offset by mistakes against the other candidate. And from a statistical probability perspective, the highest probabiliy point on a curve reveals a net zero-sum effect – in terms of selecting the winning candidate.

    That is not to say that electoral process errors absolutely will never affect the selection of a winning candidate, but that the greater probability is that it will not. And the greater the lead by a candidate – and the smaller the electoral process error – the greater the probability is that it will not.

    Minnesota must have one of the lowest electoral process error rates in the nation – a tribute to the voting machine systems, and especially a tribute to the volunteer election officials. The general election electoral process error rate must be below 0.25%, since the Secretary of State is considering a legislative request to move an automatic Recount “kick-in” to 0.25%, rather than the current level of 0.50%. And in my view, the Recount (which removes voter electoral error rates by determining voter intent from machine-rejected ballots) must have an electoral process error rate below 0.1%.

    Assuming a nominal Recount electoral process error rate of 0.1% at the peak of a normal distribution curve – and one candidate having a nominal 225-vote lead at that point – then as the error rate and corresponding vote differential varies over the curve, the same Recount could be performed multiple times with a 90% probability that the same candidate would win the Recount 96.7% of the time.

    So the math reveals that the current leading candidate does not enjoy his status only as a result of “luck-of-the draw”. And that a 225-vote lead is indeed a substanitive lead.

  5. Submitted by Peter Michielini on 03/24/2009 - 11:26 pm.

    The curse and the blessing of a democracy.
    It is worked on, day to/after day.
    This is the price of freedom.

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