Senate recount trial: Franken witnesses parade into court; Coleman side questions state data and delays ‘do-over’ discussion

They held a parade today in Courtroom 300, and Al Franken’s case came marching in.
 
Even Oprah Winfrey made an appearance in the court record.
 
Also, Norm Coleman didn’t firmly brush away the notion of an election do-over, but his chief spokesman shied away from the controversy du jour.

Mostly today, Franken’s lawyers brought in 24 witnesses, including 23 voters from the metro area in one rapid and repetitive day of testimony.
 
The Franken goal: to have voters tell their stories about their (apparently) wrongly rejected ballots. With some scientific parsing by his campaign, the hope of Franken’s lawyers is to increase their client’s official 225-vote lead in the 2008 U.S. Senate election recount.
 
One unintended consequence: The Coleman side pointed to some oddities in many of the voters’ election tales, inconsistencies that the Coleman lawyers said prove some key elements of their case … such as their recent concern that the data system of the secretary of state’s office is, sometimes, inaccurate and/or out of date.
 
It’s unclear if all 23 of the voters were locked-in Franken voters. Franken lawyer Marc Elias admitted that in some instances his side has a good feel for who their witnesses voted for.
 
“Look, let me leave it at this,” Elias said. “It’s our case; it’s our opportunity to put forward who we believe ought to have their votes counted.”
 
After all, the Coleman side has been trying to get its likely voters in the mix, too.
 
But — and, after all this time, this is easy to believe — one of Franken’s witnesses today said he’d actually forgotten whom he voted for.  

Wednesday is 4-month mark since election
Wednesday is March 4. The election was Nov. 4, four full months ago.
 
“I got to be honest with you — I don’t remember,” the man said of whose oval he filled in on his absentee ballot. “For the majority of the campaign, I was intending to vote for Franken, but in the days before, I was flipping between all three candidates.”
 
And now?
 
“I kind of wish the election could just be done and we could move on,” he said.
 
That was Jason Okrzynski. Call him a very good example of the typical witness. And a purveyor of needed levity.
 
His testimony showed the complexity of one ballot.
 
He’s also the fellow who made history by bringing Oprah into the mix of this one-of-a-kind trial.
 
“At this point, we call Jason Oak-a-rin-ski,” said Franken lawyer Kevin Hamilton, beckoning his 17th witness of the day, just before lunch time.
 
“O-kra-zinski,” corrected the Rev. Jason Okrzynski, the associate pastor of Faith Lutheran Church of Waconia, as he strolled from his seat in Courtroom 300’s gallery to the witness stand.
 
When Okrzynski settled into this seat, across the room and to the judges’ left, he was asked to identify himself.
 
He did.
 
“Thank you for coming down,” said Hamilton, who led Washington state Gov. Christine Gregoire’s recount win four years ago. “I apologize for the mispronunciation.”
 
The court reporter asked the Lutheran minister to spell his name.
 
“O-K-R-Z-Y-N-S-K-I,” he said. He paused. He added the punch line.
 
“It rhymes with Oprah Winfrey.”
 
Okra-zinski. 

A bit of comic relief
With that, the courtroom filled with lawyers, judges, journalists and some remaining witnesses also filled with sustained laughter. This trial has needed some comedy recently.
 
Hamilton, laughing heartily, needed time to recover.
 
But when he did, as colleague David Lillehaug did earlier, Hamilton engaged in a staccato series of questions to his friendly witnesses.
 
“Did you cast a ballot in the November 4, 2008, general election?”
 
“Did you vote by absentee ballot?”
 
“Were you a resident of the state of Minnesota at the time you cast your ballot?”
 
“Did you live in the state of Minnesota for at least 20 days prior to the election.”
 
“Were you a citizen of the United States?”
 
“You were 18 years of age in November of 2008?”
 
And on and on it went, 23 times, just like that.
 
But, as with some of the tales attached to ballots, Okrzynski had his unique experience.
 
First, the signature on his absentee ballot application and then his ballot seemed not to match. The Coleman side made a big deal of that during its five weeks of trial.
 
“I’ve been signing my name for about 27 years,” said Okrzynski, who is 31, “and I’m not sure I’ve signed it exactly the same once. But they are absolutely my signatures.”
 
Voting issues continue
There was another issue.
 
The person who witnessed his ballot, Kallie Stroh, is the youth minister at his church. Stroh told Okryznski that she was registered to vote, a requirement of an absentee ballot witness.
 
But, it seems to have turned out that Ms. Stroh had changed her official voter registration address between the time she witnessed his ballot and her Election Day registration.
 
That move could cast his ballot into question. The testimony of Secretary of State elections offical Gary Poser over the past week has suggested that a person must be registered at her new abode at the time she witnesses a friend’s ballot.
 
Examples such as Oprahwinfrey’s led Coleman spokesman Ben Ginsberg to thank the Franken campaign for “helping to prove the case” that there were some glitches in the secretary of state’s registration database, as he charged Tuesday.
 
“At the end of the day, the job of the court is to certify the number of legally cast votes,” Ginsberg said after the court session. “That has become a virtual impossibility … How in the world can these three judges certify the number of legally cast votes, which is their statutory duty, with all these problems, fatal muddles?”
 
Those aren’t new words. But Ginsberg keeps reviving them. At the end of court today, he provided to reporters some evidence that as many as 61 of the 933 absentee ballots included in the count by the State Canvassing Board on Jan. 3 may, too, have had witnesses with faulty registration … all because of the secretary of state’s database, Ginsberg said.
 
(Note: The 933 have been approved by the three-judge panel … twice now.)
 
For their part, the Franken side isn’t too concerned. Elias notes that nearly 3 million people voted in this election, that about 280,000 cast absentee ballots, that 12,000 were rejected, that most of them were properly rejected and that, now, at this trial, the universe of controversial ballots is, likely, far south of 2,000.
 
So, Elias said, he has no fear that his own case can backfire and somehow reinforce the Coleman notion that thousands of ballots and already counted votes are somehow murky.
 
“The fact is the system worked in 99.99 percent of the case,” he said. “The system … got it right in the overwhelming majority of the cases.” 

‘Do-over’ controversy still alive
What remained fresh today was the brush-up over the do-over notion, the idea that the 2008 election should be “set aside.”
 
That was caused by a letter Coleman lawyer James Langdon sent to Judges Elizabeth Hayden, Kurt Marben and Denise Reilly Tuesday. MinnPost’s Eric Black has reported deeply on this.

And Langdon’s letter is part of Eric’s analysis.
 
But, besides a response letter to the judges today, Franken lawyer Elias told reporters: “There is no precedent, there is no law, there is no statute, there is no rule, there is nothing in Minnesota that would suggest that one could simply start over again …I think it is probably a commentary, as much as anything else, on how they believe their case went.  They began the case by saying, ‘Let’s count every vote that was wrongfully rejected,’ and they ended their case by saying, ‘Why don’t we just start all over again?’ … If  Senator Coleman wants some extraordinary remedy that involves something that is within the power of the United States Senate, then I’m sure as a former senator he knows where in the Hart Senate Building to send those papers.”
 
With the Democrats in control of that august body, it’s unlikely Republican Coleman would find much support if he takes this case to Senate Majority Leader Harry Reid and his buddies.
 
For his part, Ginsberg downplayed Langdon’s letter and the notion that the Coleman side is moving in that direction.
 
Ginsberg said Langdon’s letter and its mention of setting aside the election was in response to questions from the judges about remedies for the idea of counted votes – that Coleman now says are illegal — being uncounted.
 
“The state has not faced this situation before,” Ginsberg went on, repeating he’d like the “Friday the 13th ruling” to be rescinded. That ruling rendered about a dozen ballot categories illegal.
 
But no, Ginsberg said, his side isn’t seeking a new election … not yet. But he said he thinks the possibility of having a new election is “unclear under Minnesota law.”  That is, the door may be open.
 
“We’re not there yet,’’ he said. But the judges will have to think of “innovative ways” of dealing with the problems the Coleman side believes exist.
 
When Ginsberg was conducting his midday news briefing, from seemingly out of nowhere, Norm Coleman quietly arrived to lunch with his legal team.
 
Tucked behind a gaggle of scribes, Coleman was spotted by the ever-alert Rachel Stassen-Berger of the St. Paul Pioneer Press.
 
“Senator, do you think there should be a new Senate election?” she shouted to him, just like out of a “Law & Order” episode.
 
Tom Erickson, Coleman’s spokesman, craftily countered: “We should wrap it up, the [Capitol] cafeteria is closing.”
 
But Coleman, looking thin these days, didn’t seem to be all that hungry.
 
“We’ll go through this process and see what this court can do,” Coleman replied to Stassen-Berger as her colleague media jackals surrounded him. “Clearly there are problems in the system in which the number of illegal ballots may far exceed the difference between the candidates. How the court resolves it, I don’t know … In the end, I think that’s [a new election] something that folks need to think about. I don’t know who makes that decision. One of the reasons I hesitate to respond is I’m not sure in terms of … process, how do you do that?”
 
Can’t do it right now, though. There’s a brisk Franken parade under way, and it will resume Wednesday morning.

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

Comments (2)

  1. Submitted by Alyce Bowers on 03/03/2009 - 08:22 pm.

    Maybe you should ask Mr. Coleman what he thinks of his legal team now. After his lawyers were so inept they were sanctioned, fined $7,500 and threatened that either they shape-up or the judges would throw out the whole case!!

    Witness tampering, obstruction of justice, hiding evidence – this is a pretty big deal. The Minnesota bar association may want to have a little chat with Coleman’s lawyers.

  2. Anonymous Submitted by Anonymous on 03/06/2009 - 10:25 am.

    Oh. it’s not that bad. The hard squabbling is about over and the next round of squabbling will begin shortly in some sort of appeal. I must say, I have never wanted a job as much as Norm Coleman wants his senate job. I feel kinda sorry for him, that his life is so wound up in his employment. There is more to life. Settle down.

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