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Coleman-Franken trial: Week Six ends with an avalanche of numbers to ponder

Ben Ginsberg
MinnPost photo by Jay Weiner
For the past six weeks, Coleman lawyer Ben Ginsberg, like the rest of the trial participants, has been awash in a sea of numbers involving ballots counted and uncounted.

Norm Coleman’s chief legal spokesman Ben Ginsberg likes to joke with journalists who are covering the election contest trial. A repeated quip is that when he was hired for this gig, he was told he “wouldn’t have to do any math.”

But Mr. Ginsberg and the others of the math-challenged among us learned six long weeks ago that any hoped-for abdication of numerical knowledge was impossible.

Raw politics, nimble lawyering and crafty public relations aside, some days it seems as if Courtroom 300 sits at the intersection of numbers and more numbers.

As Week Six fades into Week Seven, with apologies to Ginsberg, we offer you a digit-laden review of the Norm Coleman-Al Franken recount trial, which today completed Day 30.

Gentlemen, start your calculators
Five — Today, the five all-powerful members of the Minnesota Supreme Court who heard the case said that Franken won’t get his election certificate until this case is over. Chief Justice Eric Magnuson and Associate Justice G. Barry Anderson, who were members of the State Canvassing Board, oh-so-long-ago had recused themselves.

One — Is for the First of April … that’s your MinnPost correspondent’s new prediction for the end of this phase of the recount.

That is, before an appeal is heard. Totally, a guess.

But somehow April Fool’s Day seems about right.

Two — That’s our view of the number of ways this trial will wind down.

One way — the less likely way — is for the three-judge panel to issue an order at the end of closing arguments.

It would state that the election was legal and valid and now it’s time to count the ballots that were brought into evidence and finish off the tally. Let’s await the outcome of the newly counted ballots and the case will be over.

Privately, lawyers on both sides don’t think it will work that way.

The most likely endgame scenario is this, lawyers said privately:

Franken ends his case next week. Let’s say next Friday.

Coleman makes his rebuttal. Let’s say that takes three days.

Soon after, there are closing arguments, which take a full day.  

Within days, the judges will issue a detailed order listing those ballots they rule should be opened by the secretary of state and included in the final vote count.

Let’s assume that number is somewhere between 500 and 1,000.

It will then take, perhaps, four to six days, for the mechanics of that to play out. Remember, the ballots are still back in the counties, or, in the case of Minneapolis, with city elections officials.

Once an order from the three judges is issued, the secretary of state’s office would have to get those ballots delivered.

Assume, at least, three days of ballot gathering, transporting, etc.

Then, it will take a day to open the ballots and count them.

Also, remember, it’s possible — though not guaranteed — that the judges will allow the two sides to challenge ballots, just as during the recount, especially for voter intent. That could extend the time it takes to count 1,000 ballots or so.

Then, after the counting, and after the judges rule on other matters — such as alleged duplicate counting or missing ballots — the three jurists could issue their “verdict.”

Patience is a virtue, dear readers.

Kevin Hamilton, Joe Mansky
AP Photo/Jim Mone
Al Franken attorney Kevin Hamilton, left, looks over an exhibit today with Ramsey County Election Director Joe Mansky during the Senate recount trial.

Four — But, on the other hand, Judges Elizabeth Hayden, Kurt Marben and Denise Reilly could significantly streamline this case in the interim.

Today, the Coleman side limited its major claims to the four key issues: the wrongly rejected absentee ballots, the so-called “missing 132” ballots from Minneapolis, some double-counting of votes and the notion of “equal protection.”

It could be that before their ultimate decision, the judges would issue some interim order that further narrows the universe of votes or even the number of Coleman claims still in dispute.

Three — A shout-out to Hayden, Marben and Reilly. They are the Big Robed Troika in this saga.

Six — The number of Franken staffers and lawyers dedicated this week to vetting and processing witnesses on site at the courthouse. They helped with parking, escorted them to Courtroom 300, vetted the witnesses before they took the stand and then directed them back home.

Nine — As in “Rule 9,” which was argued this afternoon.

The best explanation of this came today from Rachel Stassen-Berger in the Pioneer Press. She details it about halfway down her story.

Basics: Coleman’s side wants to undo it, even though both sides agreed to it, with the reluctant agreement of Secretary of State Mark Ritchie.

Basics No. 2: The issue focuses on whether some ballots were counted twice and whether, in that case, if originals should be counted or the duplicates hand-produced by judges.

It’s complicated but could adversely affect Franken if the judges side with Coleman. Depending on whom you talk with, it could cost Franken up to 125 votes of  his lead.

Seems unlikely Coleman will win this — based on the body language of the judges — but watch this one.

Nine (again) — Total number of ballots the Franken side says the Coleman side has proven should be added to recount.

1,725 — The total number of ballots Coleman side says it has proven should be added to recount.

47 — The percentage of Minnesotans who believe Franken has won the election, according to a new survey by Rasmussen Reports.

46 — The percentage of Minnesotans who want a re-vote of this election, according to Rasmussen.

35 — The percentage of Minnesotans who believe Coleman has won, from Rasmussen again.

35-ish — Franken lawyer Kevin Hamilton deftly uncovered about 35 ballots, most of which will surely go to his candidate, during Thursday’s examination of Duluth’s election officials.

The issue was whether the dates on a ballot filled in by the voter and his or her witness differed and if it matters. Turns out it doesn’t. Turns out Duluth judges previously rejected ballots with mismatched dates.

Big boost for Franken on this seemingly itsy-bitsy slice of ballots.

12 — Number of Franken-linked voters — mentioned in Franken’s opening legal papers — who the judges instantly said should have their ballots opened by the Secretary of State.

21 — Number of Franken-linked voters — organized and represented by Minneapolis lawyer Charles Nauen — whose ballots have been ordered to be opened by the judges.

Norm Coleman, Tony Trimble
AP Photo/Jim Mone
Former Republican Sen. Norm Coleman reviews a document during today’s court session. At right is attorney Tony Trimble.

Nearing 300 — So, that’s how many votes Franken likely has in his back pocket before any other ballots are opened and counted; his 225 at the recount and these additional 70 or so that his lawyers have grabbed for him in court.

22 — That’s how many days Franken lawyer Kevin Hamilton has been home since Nov. 10, when he arrived from Seattle to begin working on the recount. He spent a few days back with his family for Thanksgiving and Christmas and then about two weeks in January before the start of the trial. That’s 22 days in nearly four months.

23 — That’s how many days Franken’s lead recount lawyer Marc Elias has spent at his Washington, D.C., area home since he arrived on the scene that same week in November. Elias spent Thanksgiving and New Year’s Eve in Minnesota.

More than 40 but less than 100 — One of the issues over the past six weeks has been voter registration and whether citizens who cast absentee ballots were registered.

One key category was absentee voters who may have placed their voter registration forms inside the so-called secrecy envelope. That secrecy envelope is supposed to be reserved for a person’s ballot, but some folks mistakenly put their registration forms in that envelope.

So, when their outer absentee ballot envelope was opened, it was possible that, absent the registration form, election judges believed the individual voter wasn’t registered.

Coleman’s side especially made a point of this during their case.

In response, the three-judge panel issued an order last week; county election officials were to carefully open the more than 1,400 secrecy envelopes in ballots and look for any registration forms that may be enclosed.

No official count yet, but it appears as if fewer than 100 just ballots will be affected.

933 — Remember way back when in January. That’s when Franken whipped Coleman bad as the State Canvassing Board opened 933 previously rejected absentee ballots?

Ever since then, the Coleman side has said that pool of votes was tilted towards Franken.

Recently obtained spreadsheets from the secretary of state’s office sort of confirms that; of the 933 votes counted, 421 came from Hennepin, Ramsey and St. Louis counties, all Franken territory.

That’s about 45 percent of the votes counted by the board.

Those counties only account for about 35 percent of the state’s 5.2 million residents.

83 — The number of pages in just one of a half-dozen or so spreadsheets the Franken campaign presented to the court detailing — in breathtaking specificity — why and how Coleman’s side failed to prove that more than 2,000 voters’ ballots should be accepted.

We’d show you all 83 pages here, but your eyes would glaze over. Suffice to say, besides showing the legal requirements that voters’ failed to meet, the spreadsheets reveal the overwhelming logistical power of the Franken legal machine.

$1,151 —
That’s how much money Duluth City Clerk Jeff Cox wanted to get paid to testify about ballots in his fine city. That’s about $1,000 more than the typical mileage and witness fee. Cox sought to quash his subpoena.

The three-judge panel said: “$105.”

He testified.

225 — The enduring number … so far, and the one that Franken lawyer Elias embraces and that even Sen. Coleman has mentioned. It’s Franken’s lead that Coleman needs to overcome. Coleman calls it “artificial,” but it’s the hurdle that he must leap over.

The big question: Are there enough unopened ballots out there to get Coleman over the 225 hump. Or, even worse, the nearly 300-vote hill we explained earlier here. It is a very tough climb.

Zero — “I don’t think it’s the numbers; I think it’s the concepts that are more important, ” said Ginsberg, the anti-math guy. “Whatever you hear either side say the lead is in this case, it is dwarfed by the number of mistakes, in illegally cast ballots or disparate treatment or just plain absentee ballots that are wrongly rejected.”

He also cites his view that the state’s voter registration system, which hasn’t been updated, is making “hundreds” of registered voters appear not to be registered.

About 600 of the state’s approximate 4,000 precincts haven’t updated their voter rolls; they’ve been busy.

So, it can be said, for Coleman’s legal team, the key number is the number of mistakes. But …

99.99 — The percentage Franken lawyer Elias cites. He says that’s how accurate the count has been. With mistakes “here and there.”

2,887,337 — The Jan. 3 counted total of Senate votes approved by the Minnesota Canvassing Board. It’s become the largest recount ever in U.S. politics and, likely, the longest election contest trial.

That positions us for Week Seven of this trial. We should pause to inhale the magnitude of the sum of all these parts. After all, these numbers add up to American history.

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

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Comments (3)

  1. Submitted by Alyce Bowers on 03/06/2009 - 06:25 pm.

    Truly wonderful summary. I don’t know if it was exactly a “cotest” but Louisana took almost a full year to decide that Mary Landrieu was the winner in the Senate race. Big difference though, she was seated provisonally while the fight went on – 2002. In 2008 she was reelected by a large margin. Yes, she is a Democrat.

  2. Anonymous Submitted by Anonymous on 03/07/2009 - 08:28 am.

    This is 1st grade math instead of an avalanche. If you take the number of votes cast and counted by the machines, almost 2,900,000 and divide it by the 263 when the recount was made and verified by both campaigns, you get an error rate of approximately 1 in 10,000. Using that same accuracy all 2,900,000 could be counted a third time and if Coleman won every single vote he still could not win because the court has given Franken 50 more. This contest process has made Minnesota’s outstanding recount and election integrity the laughing stock of the whole country. It is being compared to Florida 2000 because of Norm Coleman.

  3. Submitted by Maggie Webster on 03/07/2009 - 11:59 am.

    This was a very well written article. It was possible to follow without any confusion. Great job! I was so impressed, I had to register to tell you I found your article interesting, riveting and informative. It seems as though Mr. Franken knows how to treat his constituents. I wish both men well.

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