After 26 days, hundreds of questions and thousands of exhibits, sometimes the crux of all this gets forgotten.
You sit in court and you see and hear about motions and emails, objections and orders, good witnesses and tainted ones.
You stand in the hallway and digest daily news briefings and dramatic media presentations. Sometimes, the truth is bent.
You surf the web and gather info from Washington about the power of the Senate to seat its own members and read transcripts sent by PR people about targeted fund-raising appearances on rightwing TV shows and leftwing radio talk shows.
There is a lot of noise. But the crux of this legal dispute and how it will end is this: the vote count.
Whoever wins that when this case ends and moves to its next phase has a major leg up on becoming Minnesota’s second senator.
It may seem simple, but it often gets lost in the noise and the accusation.
Everything else is details.
Key lingering question
“Who won this election anyway?” remains the lingering question the answer to which the public is waiting to hear. What do Judges Elizabeth Hayden, Kurt Marben and Denise Reilly believe is the answer to that?
Beginning Tuesday — to mix political and pugilistic metaphors — Al Franken’s lawyers want to put Norm Coleman down for the count.
Now that Coleman’s side has rested — with the exception of some documents to be submitted Wednesday — it’s Franken’s turn to show that the Minnesota electoral system is solid, fair and filled with more Franken votes.
Franken lawyer Marc Elias said today that he and colleagues David Lillehaug and Kevin Hamilton are going to trot in scores, if not hundreds, of voters from across Minnesota who will state that their vote should be counted and that their absentee ballot was wrongfully rejected.
Those Franken-leaning voters will move in and out of Courtroom 300 “briskly,” Elias said. Some county auditors will make their scintillating appearances, too, bringing in all the excitement of CPAs at a continuing education conference.
Coleman’s side brought in about 20 voters during its five-plus weeks of putting on its case. Elias said that as many as 20 voters with Franken leanings will be brought in Tuesday alone.
And then others for another “two or three” weeks.
Nothing like a St. Patrick’s Day election contest finale in staggering St. Paul.
The goal: to attempt to increase Franken’s recount lead of 225, which already has grown to, unofficially, 258. Those are votes the three judges have already ordered — during Coleman’s case — be counted by the secretary of state’s office toward the end of this trial.
(In a ruling late today, Franken saw three votes that he thought he had disintegrate. They were among the so-called “Nauen 61” voters who individually petitioned the court for their ballots to be opened. In response to a Coleman objection, the three-judge panel changed its mind on three voters today, leaving 21 in place.)
Casting a cloud of doubt
Still, while Elias feels comfortable with where his side stands at the end of Coleman’s legal case, Coleman’s legal spokesman Ben Ginsberg today put the entire count into doubt.
He’s been doing that for weeks now, but today he labeled as “blockbuster” the testimony of Secretary of State Elections Director Gary Poser.
In direct and cross-examination, Poser said that some citizens who registered to vote had their absentee ballots rejected because election officials believed they already voted in person.
It had to do with a glitch in the secretary of state’s statewide voter registration database. Ginsberg called the mistakes “systemic.”
But in cross-examination, Franken lawyer Lillehaug seemed to reduce the universe of affected votes to about a half-dozen.
Ginsberg, outside of court, said it could amount to hundreds.
But his major zinger of the day was that this one example of bad data suggested the secretary of state’s entire data system is “corrupt … It’s impossible to have faith in the system,” Ginsberg said, calling it “completely inaccurate and inconsistent.”
Of Poser’s testimony and his view of the data system, he added,: “It really casts some doubt on whether the results of this election will ever be accurate. That is incredibly disappointing for us because we think if they do the count, we’ll actually turn out on top.”
Deputy Secretary of State Jim Gelbmann reacted to Ginsberg’s allegations, calling the notion of corrupted data “false … Minnesota’s elections system has been recognized as one of the best in the nation for decades. Many states look to Minnesota as they attempt to improve their own systems.”
At first, the secretary of state’s office declined comment. But the word “corrupt” proved to be a fightin’ word.
So, let’s review: It’s Ginsberg’s position that whoever wins will win as the result of a flawed system. Even Coleman. That doesn’t sound very good for anyone.
Nor does it reflect the testimony of almost all the county auditors who testified during Coleman’s case. Nor does it jibe with some early opinions of the three-judge panel.
Sounds as if Mr. Ginsberg is throwing a dark cloud over the whole process.
“What really matters is not what Ben Ginsberg says in the hallway,” countered Elias. “It’s what happens in the courtroom … This is an election that the people of Minnesota can and should be proud of.”
Speaking of dark clouds, Minneapolis election judge Pamela Howell finally got to fully testify today. She’s the person who went to the Coleman legal team to tell them about alleged double-counting of some votes in her precinct; exactly how many she never said.
Today she underwent some combative cross-examination from Lillehaug, but only after the judges sanctioned the Coleman lawyers for violating various civil procedure rules en route to her now-tainted testimony.
It’ll cost Sen. Coleman’s recount committee $7,500 because of their errors in contacting Howell and not revealing it all to the Franken side.
Ginsberg said Howell’s testimony “proved” there was double counting of some duplicate absentee ballots.
But she was the only witness to testify to that in this case, although others said it was possible.
Of course, $7,500 in legal fines in a $40 million election contest is just cigar money. A tiny rounding error.
The big cache is the count. Beginning Tuesday, Franken will try to run up the score. And, you just wait: Ginsberg will be all over the officiating.
Jay Weiner can be reached at jweiner [at] minnpost [dot] com.