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Senate recount trial: Judges’ ruling good news for Franken; Coleman side says appeal is now certain

With only 400 votes to be reviewed, Al Franken’s lead looks insurmountable, and Norm Coleman spokesman Ben Ginsberg wasted no time in criticizing the ruling and making it official that an appeal to the Minnesota Supreme Court would be the side’s eve

Today’s ruling (PDF) by the Al Franken-Norm Coleman three-judge panel to open and count as many as 400 ballots wasn’t shocking or earthshaking.
Nor was it the end of the now almost-five-month-long recount saga. Not at all. It was a ruling with great implications, but it was yet another interim step along a historic path.
For instance, we now know for sure that this process may extend into May.
For the first time, Coleman’s chief legal spokesman Ben Ginsberg said what everyone expected to be the case, but never before succinctly uttered: The outcome of this trial in Ramsey County District Court will be appealed to the Minnesota Supreme Court, meaning we’ll have this recount to kick around, apparently, into next month, at least.

But to paraphrase that noted political pundit and former Twins manager Billy Gardner, the fat lady has entered the building and she’s clearing her throat. And Ginsberg isn’t letting up on bashing the judges.
“Their almost-April Fools’ Day order” is what Coleman’s legal spokesman called today’s decision to limit the number of ballots to be counted.
He demeaned it because all the calculations for Coleman now can only be public relations and legal ones. If there were ever a doubt on the numerical calculations, it ended today. They all add up for Franken.
The details
The ruling was remarkably consistent with how Judges Elizabeth Hayden, Kurt Marben and Denise Reilly ruled during the seven-week-long Election Contest trial. They believe that only ballots that meet all the key state legal requirements should be counted. They didn’t in February — and didn’t today — buy the Coleman side’s position that there is a “presumption” that ballots are legal  … even if there’s insufficient evidence to prove it.
As they wrote on Feb. 13 and repeated today in their ruling, “Showing the reason for rejection [of an absentee ballot] is not tantamount to proving [it’s] legally cast.”
That ruling was dubbed the “Friday the 13th” opinion by Ginsberg, and has been ever branded by the Coleman side as scary legal doctrine.
When the election contest trial ended on March 13, Coleman wanted 1,360 ballots to be opened. But today, most of the ballots the judges ruled to be opened are on the spreadsheet Franken submitted to the court, not Coleman.
What made today’s 18-page unanimous opinion powerful was that it indisputably knocked Norm Coleman out of any chance of winning the recount on the numbers. We sort of knew that for a while, but today was the dagger.
Simply put, there is no way Franken’s 225-vote lead – in place since the State Canvassing Board finished its work on Jan. 6 — can be flipped on the strength of the 400 ballots that the judges said they want to analyze and count on Tuesday. And there would be reasons that not all of the 400 will be counted; for example, signature mismatches.
A quick-and-dirty MinnPost analysis suggests Franken’s lead will grow significantly when those 400 ballots are opened. Take, for instance, the 22 ballots from Minneapolis that the judges ordered to be opened; 17 of them came from Franken’s list of voters that his side wanted opened. Ya think those might be Franken votes?
Of the 400 ballots the judges ordered in from the counties for counting, 202 are from Hennepin, Ramsey and St. Louis counties, widespread Franken country.
Included in those 400 ballots are about 50 the judges had already ordered opened from identified Franken voters, who either petitioned the court or for whom Franken’s lawyers won judgments.

[The Associated Press reported that of the 400 ballots that will be examined and could be counted, 150 came from Franken’s desired spreadsheet, 125 from Coleman’s, 50 were on both candidates’ lists and the remainder were on neither’s spreadsheets.]

“The math is the math,” said a clearly gleeful Marc Elias, Franken’s lead recount lawyer. “We don’t know inside what the ballots will yield [but] the math becomes increasingly difficult for Coleman.”
For Coleman to overcome Franken’s 225-vote lead with a universe of 400, here’s how the math has to go. First, assume 16 percent to Dean Barkley – remember him? That’s 64 votes off the universe.
That leaves a maximum universe of 336 ballots. That would mean Coleman has to win the count next Tuesday by a vote of 281-55, or more than 80 percent.
Said Ginsberg:  “You never give up hope, but it becomes a much longer shot. We were pretty confident with the [1,360] ballots, if they had been opened, we would have prevailed … It’s probably akin to you winning your NCAA bracket pool at this point.”
One in a zillion.
Judicial scolding
There’s another powerful piece of the ruling: The judges seemed to not-so-subtly scold Coleman’s lawyers for simply not proving the legality of enough ballots to be opened.
For six weeks now, Ginsberg has been publicly blasting the judges for that “Friday the 13th ruling” of February when they sweepingly canned a dozen or so categories of absentee ballots that could be opened. Ginsberg, the Washington, D.C., spinmeister, began a campaign then to assert that the judges “changed the rules in the middle of the game,” making some subsets of ballots illegal in their courtroom that, in some cases, had been counted already on Election Night or by the State Canvassing Board.
In the trial’s closing arguments on March 13 – another Friday the 13th – Coleman lawyer Joe Friedberg reiterated his protest of the Feb. 13 ruling.
Today, Ginsberg repeated “the court has reached an unprincipled decision … the court was subsumed with its own logic … We believe the court is wrong in their entire standards of review … We just think they’re wrong to sweep the problems of this election under the rug.”
The judges – in a judicial way – fired back today.
They reiterated the importance of their Feb. 13 ruling, which established their own road map as to what ballots, in their view, were legally cast. And they wagged their finger at Coleman’s lawyers for not bringing in enough evidence.
“Each party knew or should have known the scope of the Court’s review . . . before [Coleman’s lawyers] rested their case-in-chief . . . [Coleman’s lawyers] must meet their burden of proof . . . The Court gave both parties every opportunity to meet their burden. The Court did not impose time limits on the length of the election contest nor did it limit either party’s opportunity to call witnesses or introduce evidence.”
Is this how judges say “put up or shut up”? Follow our rules, sir. Prove your case.
But Ginsberg, dogged, kept to the talking point he’s made since their Feb. 13 ruling: “You can’t set one set of rules on Election Day and then – presto/magico — on Friday the 13th and almost April Fools’ Day, you have another set of rules that says you have to meet all these [different] standards.”
But they did.
What’s left?
Today, the judges did not – and have not – yet ruled on Coleman’s remaining key issue: whether there were “equal protection” violations in this election. That is, were some votes for a variety of reasons denied in one county, but accepted and counted in another? Were different standards used on similar absentee ballots in different parts of the state? And does that pose constitutional issues?
Ginsberg believes it does. Franken’s side doesn’t agree. Standards existed, they argue, but, in a small number of cases, in their view, election officials made different decisions. Coleman’s side believes they showed widespread inconsistencies.
That matter and the issue of 132 missing ballots in Minneapolis and alleged double-counting of other votes are the lone, major surviving issues. Lawyer from both sides said they expect the court to rule on all of those issues soon.
But it is “equal protection” that will be the oversized shoe dangling above Courtroom 300 when both sides gather again to witness yet another round of ballot opening next week.
“That other shoe still has to drop,” said Ned Foley, the Ohio State elections law expert who has been closely monitoring this history recount.
Still, in Foley’s analysis, he finds it difficult to believe the Minnesota Supreme Court – the next stage after this three-judge election contest court – will overturn Hayden, Marben and Reilly on their interpretation of Minnesota law.
Why’d it take this long?
Last Friday we wondered why the judges were taking so long.
Today, they answered, and the explanation was as detailed as every other ruling they’ve made.
Rather than rely on spreadsheets supplied by both Coleman and Franken of potential ballots to open, which the judges called “inadequate and unreliable,” the judges explained they personally examined “all the records and documents” submitted during the trial.
“The Court reviewed 19,181 pages of filings … 1,717 individual exhibits … testimony from 142 witnesses … [and] exhibits offered in three-ring binders that, when stacked, equaled over 21 feet of paper copies.”
They weren’t twiddling their thumbs. They combed the evidence.
Still, said Ohio State’s Foley, the judges’ ruling revealed certain “atmospheric tensions,’’ perhaps inevitable tensions.
On the one hand, the judges noted that Coleman was the “contestant” and it was his burden to prove that ballots he wanted opened were legal.
They ruled – and these are Foley’s wise words, not theirs – “We can’t help a voter out if Coleman doesn’t put in sufficient evidence.”
On the other hand, the judges themselves went through all the ballots, trying to show that they were, to a certain extent, representing voters – indeed, representing the letter of the law — and not representing candidates.
They wanted to show their methodology was nonpartisan, with public appearance a not insignificant element here as the nation’s entire political establishment watches.
Still, as they’ve done throughout the trial, their rulings helped Franken, not Coleman.
The national watch will continue. A week to go for the ballots to get to St. Paul and the count. More rulings will flow from the judges. When those will come remains unclear. Then, the appeal to the Minnesota Supreme Court. Ginsberg wouldn’t say if a federal action was in his back pocket. But his – and Coleman’s options – are getting narrower and narrower as April Fools’ Day arrives.

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