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Senate recount trial: On the seventh day, Franken side prepares to rest; here’s where things stand

In a surprise but welcome move, Al Franken’s lawyers said this afternoon they will rest their case Wednesday in this seven-week-long election contest. Why now … after claiming earlier that their case could take as much as three weeks?

Marc Elias

MinnPost photo by Jay Weiner
Franken lead lawyer Marc Elias, shown at a December recount briefing, today announced plans to wrap up his team’s case on Wednesday.

And on the seventh day, they rested.
 Or, being lawyers, said they were going to rest.
 In a surprise but welcome move, Al Franken’s lawyers said this afternoon – their seventh day of presenting their evidence — they will rest their case Wednesday in this seven-week-long election contest.
 Why now … after claiming earlier that their case could take as much as three weeks?

“We feel good about how our case went,” said Franken’s lead recount lawyer Marc Elias. “We think we have put into evidence a strong case.”

And why keep their client, Al Franken, waiting even longer to get into the U.S. Senate if they feel he’s going to win this case anyway?

Scores of witnesses, hundreds of ballots
By the end of today, Franken’s lawyers brought in 62 voters, most of whom seem to have submitted legal ballots. They brought in 11 county auditors or election officials, most of whom seemed to suggest Franken’s witnesses – and other voters’ ballots in their counties – should be counted. Another 40 or so election officials statewide have been certifying the validity of ballots from afar.

Exactly how many votes the Franken side introduced into evidence isn’t known, but it was hundreds.

Still, it’s not over. Not yet.

Franken’s side will use Wednesday afternoon to finish up its case. And it could – could – re-open its case for some additional evidence, Elias said, if the lawyers want or if there’s a “hiccup” along the way.

Minneapolis lawyer Charles Nauen, who is representing a group of Franken-leaning voters, will get some time to nail down his case and secure more votes for Franken.

Somewhere in there, Coleman will get another shot to rebut Franken’s case. That will take a day, perhaps a bit longer.

“I take joy of heart, lightness of heart even, in the Franken campaign deciding to rest their case tomorrow,” said Coleman’s legal spokesman Ben Ginsberg, but he reserved comment on the overall merits of Franken’s case until, he said, Wednesday’s conclusion.

Coleman’s side relying on three themes
As we move towards the rebuttal phase, Coleman’s side seems to be relying on three themes:

The so-called “Bell” case that colleague Eric Black has so deftly explored on this site over the past days. It addresses whether Coleman can seek to “uncount” already tallied ballots. It seems to be an issue that Judge Kurt Marben is most interested in.

To understand it all, check out Black’s posts.

• The inconsistencies in the handling of similar ballots between counties and local election precincts. Some did it one way, and others did it another. From checking witness addresses to signature mismatches to getting exact addresses of voters, different locales approved and rejected votes differently.

That’s been a longstanding theme and likely will be emphasized some more when Coleman’s side gets to rebut. That goes to the “equal protection” provision in the U.S. Constitution: Has everyone’s ballot received the same treatment?

Will that lead us to federal court?

• Finally, a major theme emerging over the past week or so has been Coleman’s assertion that the State Voter Registration System lacked up-to-date data to show which voters were registered.

Ginsberg again questions fairness of ‘system’
In general, Ginsberg again today wondered whether Minnesota’s “system is calibrated finely enough” to have delivered a fair election.

Still, let’s take that voter registration issue. Part of it was resolved Monday. It showed how few votes there are to be mined from that issue.

About 1,500 absentee ballots were inspected to see if missing voter registration cards were inside; 80 cards were found, and not all of them will yield votes because some of those registrants’ votes might be illegal for other reasons.

So, will Coleman get a whack at 50 or 60 of those? And for whom did those voters vote? Were they, presumably, first-time voters who didn’t follow the instructions properly? Weren’t most first-time voters Franken voters?

But, do not begin to start calling Al Franken “Senator Franken.”

“We’re not there yet,” said Elias. “But we are ending what has been a very long post-election contest … It feels like a big step, but that may just be because it’s also the light at the end of the tunnel.”

The parade of witnesses could end this week. The closing arguments could come quickly, too.

But Judges Elizabeth Hayden, Kurt Marben and Denise Reilly will have to examine the legality of every ballot put into evidence. This trial didn’t last this long because the panel is fast-and-loose with details. To the contrary, this robed troika seems to love specificity and spreadsheets.

So, we could be looking at a few days of ballot examination by the panel.

After the arguments comes the counting

Then, the ballots that the judges want ordered must be retrieved from the counties or local elections officials. That process will take three days, at least.

Then, the secretary of state’s office must open the ballots; not all of them will be valid. Will the two sides be allowed to challenge ballots as they did during the recount? Who knows?

Once the votes are counted, the ball will be back in the judges’ court.

What do they think about the missing 132 ballots in Minneapolis? Are they going to count? If they don’t allow them, Franken could lose about 46 votes.

What about alleged double-counting of votes in some precincts? Coleman’s side says there are votes in them thar’ duplicates, more than 100. What will the judges rule there?

And, then, of course, there could be an appeal, first to the Minnesota Supreme Court.

We have talked much about numbers here lately, and today’s announcement suggests that Franken’s lawyers are satisfied with where their equation stands.

Let’s review:

• Franken was ahead by 225 votes when this trial started.

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• During the course of the trial it can be presumed he’s picked up at least another 100 votes via his case and Nauen’s.

• Meanwhile, Coleman’s universe of ballots has shrunk like a bad suit in a Laundromat dryer; from 11,000 (at first) to 4,800 to 3,500. Now, it is hovering nearer to 1,000 ballots.

Coleman’s lawyers will present a spreadsheet to the court Wednesday with the ballots it believes should be re-examined. Last week, they said it would number 1,725 voters. Today, Ginsberg said it would be more in the 1,300 range.

Franken’s side has submitted data declaring that only nine – yes, a total of nine — of Coleman’s hoped-for ballots are legal, fulfilling all the statutory requirements that the judges have asked for.

Even if we assume all of Coleman’s desired ballots are opened – and that just won’t happen – Franken could hold a 300-plus vote lead when those additional ballots are opened sometime soon by the secretary of state’s office.
Then, a numbers game
For weeks now, Franken’s lawyers have hinted that they believe the total number of additional legal ballots won’t exceed 500.

“The fact is, the vast majority of ballots that were rejected were properly rejected,” Elias said, and we could have been back in November, when he first arrived on the scene from Washington, D.C., because that mantra began way back when … last year, during the football season, before Thanksgiving. A long time ago.

Elias has been consistent. Of the 12,000 rejected absentee ballots on Election Night, only a handful would wind up being legally cast.

So far in this recount and this trial, Franken’s numbers have been on the mark.

Remember when Elias told reporters on a snowy day in late December that Franken was going to win the recount by 35 to 50 votes? 

Ten days later, when the first phase of the recount was completed at the State Canvassing Board, Franken held a 49-vote lead.

That’s when it became easy to believe Elias’ numbers.

Today, despite his ever-present nervous energy, Elias seemed comfortable with where Franken’s case stood. He wouldn’t give an exact number of ballots he feels his side has “proved up” over the past 32 days.

But, as much as Elias can, he seemed at peace with the decision to rest. That light at the end of the 2008 U.S. Senate race is peeking through ever so dimly.

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