Senate recount trial: Franken side seeks dismissal and touts ‘shrinking’ ballot universe; Coleman side dismisses those views

Mark Elias
MinnPost photo by Jay Weiner
Franken lawyer Marc Elias, shown last week, filed papers today seeking dismissal and claiming the Coleman legal team had not proved its case.

Once upon a time, there existed an expansive universe of rejected absentee ballots.

Or that’s how Al Franken’s passionate advocate Marc Elias dubbed them early on in this six-week-long trial.

Elias, 6-foot-5 and easy to rile, has conducted countless — and priceless — news briefings since this recount started four months ago and since this trial began six weeks ago.

In them, he regularly will extend his long arms inside the sleeves of his dark suits and hold his big hands about 3 feet apart and parallel to the ground.

His left palm is facing down. His right palm is facing up.

Elias, the lawyer to just about every Democrat in the U.S. Senate, will then engage in a Marcel Marceau sort of mime moment.

(Except Elias doesn’t do silence very well.)  

The squeeze is on
With those active hands, Elias will commence a squeezing exercise.

“Twelve thousand,” he’ll say, which was the universe of rejected ballots on Election Day.

“Forty-eight hundred,” and his hands will get closer together, reflecting the relative scope of wrongly rejected ballots — or so folks might have thought a while back.

Then, as Judges Elizabeth Hayden, Kurt Marben and Denise Reilly began making rulings and both sides in this election trial began withdrawing possible absentee ballots, the universe got smaller — like, say, a galaxy.

“Twenty-five hundred,” and his paws are nearer to each other still. That indicates a number closer to the total of outstanding absentee ballots (according to Coleman’s side)  that could, maybe, possibly, be counted still in this seemingly never-ending recount.

But today, in Al Franken’s legal motion to dismiss most of Norm Coleman’s case, Elias’ hands moved really close.

You could have fit a thinly sliced piece of provolone cheese between them, the kind Elias once surely asked for at a deli in his youthful days in suburban New York City.

About three weeks ago, when he was especially excited, Elias said, after the judges narrowed the allowable ballots to about 3,500: “Whole galaxies went poof … Let’s just be thankful the Milky Way survived … a black hole … [I]t was really more of a red dwarf.”

Elias seemed awfully cosmic.

Franken side says Coleman didn’t prove case
But today, Franken’s side said in its legal papers that, in their view, during five weeks of putting on their case that Coleman’s legal team proved that only nine ballots should be opened and counted. And that only nine ballots of nearly 4,000 that Coleman’s side offered were legally cast ballots.

In hundreds of spreadsheets, the Franken side went ballot by ballot and tried to show the three-judge panel why thousands of ballots shouldn’t be opened because Coleman didn’t prove they should be counted.

Thus today, it can be inferred that, in Elias’ view, Coleman’s universe shrunk to the size of … a mere moon rock?

Even if there are more than nine ballots that Coleman presented that the judges’ will want to open — and Elias allowed that, with more evidence, there could be some — Elias’ key point was this: The number of legally cast ballots that Coleman’s side proved should be opened is “quite a bit south of the margin in this case.”

Or 225 votes at the start of the trial.

“However, you slice it,” he said — and he wasn’t talking about provolone — “you’re talking about dozens, you’re not talking about hundreds.”

The other main point: Coleman can’t make up the difference in this recount with the legally cast ballots he’s put into evidence in this trial.

Laughter.

Ginsberg dismisses Elias’ assessment
That would be the reaction of Coleman’s spokesman Ben Ginsberg to Elias’ assertion that the universe has shrunk to single digits.

Not in court, but in the ever active “Speakers’ Corner” in the hallway outside of Courtroom 300, Ginsberg linked Elias’ assessment of Coleman ballots to the Democrats Elias normally hangs out with inside the Beltway.

“Having heard Mr. Elias’ version of the math in this case, I think I really do have a greater insight into how the Democrats in Washington have passed a $798 billion bailout bill, a $3 trillion budget and now plan on telling us they’re shrinking the deficit at the same time,” Ginsberg said. “The fuzzy math of Washington seems to have wended its way here to Minnesota.”

Ginsberg said later in the day that Coleman now has between 1,500 and 2,000 ballots still in play.

But Ginsberg didn’t specify which ballots have been proved by Coleman’s legal team during its case. The Coleman lawyers will reply with legal documents Friday.

Ginsberg, who is a mega-voice for Republican leadership nationally, reiterated Coleman themes: Franken is now trying to “disenfranchise” voters, there has been a plethora of mistakes at various levels of the election system, and the three-judge panel’s rulings have been fraught with contradictions and allowed “illegal” votes to be counted before this trial started.

Indeed, as time has passed, the Coleman case has moved firmly from the legalities of wrongly rejected absentee ballots to a stronger assertion that there are “thousands” of wrongly counted votes. And that similar ballots were evaluated in different ways by different election officials.

Those will surely be the basis for Coleman’s appeal should Franken’s lead stand.

But, first, we’ll have the actual legal arguments over dismissal of the specifics of Coleman’s case Friday afternoon. And, it seems, another week or so of testimony in RecountWorld.

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

Comments (2)

  1. Submitted by Ed Black on 03/05/2009 - 06:02 pm.

    Jay, I cannot begin to tell you how outstanding your reporting is. I’m in Massachusetts but am intensely interested in the outcome of this contest. Between you (my first source) and WineRev and streaming outtake.it is all some of the most compelling coverage of a seminal political event since…um Bush v Gore ….umm Watergate.(yes I did watch the Senate investigation….:-) ) Anyway, keep doing what ur doing….

  2. Submitted by Albert DeGenova on 03/07/2009 - 04:08 pm.

    I did appreciate the well written explanation of the trial but what no one has covered and I would like to understand is how much has this cost the tax payers of Minnesota?

    As I understand it the contestant, Norm Coleman and the Republican party brought this to trial and is only paying for their lawyers. The contestee, Al Franken and the Democratic party is defending themselves and only paying for their lawyers.

    How much is this costing the State?

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