Senate recount trial: Today’s vote count increases pressure on Coleman to ponder options

Mark Ritchie
AP Photo/Jim Gehrz
Minnesota Secretary of State Mark Ritchie walks through a security check point on his way to Courtroom 300 for today’s proceedings.

For an election that has been living on the thinnest of margins, the trend has surely not been Norm Coleman’s friend.  Today’s court-supervised, meticulous final straw of vote-counting can’t help but increase the pressure on Coleman to ponder — even reconsider? — his options.

Amid the golf-green-like silence of a packed courtroom, Coleman — who once upon a time temporarily led this 2008 U.S. Senate race — saw Al Franken’s margin grow by 87 votes to 312 votes.

Unless Coleman’s lawyers can pull out of their hats the world’s greatest legal Hail Mary, this sure looks like the final election score in the trial phase of the Senate contest.

As things stand today, Al Franken won the 2008 election by 312 votes out of nearly 3 million.

That’s still slim enough for Coleman’s legal spokesman Ben Ginberg to assert once again after court adjourned, “You can’t still see who won.”

But undoubtedly, Judges Elizabeth Hayden, Kurt Marben and Denise Reilly will declare a winner, perhaps in the next few days. It’s a lead — with a legal basis — solid enough for the three judges to order the issuance of an election certificate to Franken. Such a declaration would get the legal and political machinery geared up for a final tussle to the death … or, could it be, something less contentious?

Coleman side still planning Supreme Court appeal
From Coleman’s side, Ginsberg repeated what he said last week: Coleman will definitely appeal to the Minnesota Supreme Court whenever the three-judge panel comes down with its final ruling.  Ginsberg stated that despite the gap widening in Franken’s favor, typical Coleman supporters “want him to keep fighting.”

The basis for Coleman’s appeal will rest on three issues that Ginsberg has been talking up for six weeks — all wrapped up in the judges’ Feb. 13 order that eliminated several key ballot categories and, in his view, rendered a bunch of already-counted votes illegal. There is also the matter of “equal protection”; Coleman’s side has long asserted that different counties treated similar ballots differently, some counting them, some not.

But even as State Elections Director Gary Poser counted today’s 351 eligible ballots, the drumbeat from Albert Lea to Washington picked up.

Judge Hayden, Judge Marben
AP Photo/Jim Gehrz
Judges Elizabeth Hayden and Kurt Marben examine a certificate detailing results of the counting of nearly 400 additional absentee ballots in the Senate recount trial.

The Albert Lea Tribune, which endorsed Coleman way back when, told him to halt his appeal of the recount “and let Minnesota have two senators again.” If ever there was a voice from the heartland, this is it.

New York Sen. Charles Schumer, who led the Democratic Senatorial Campaign Committee during the 2008 election cycle, weighed in: “When you contest the results of an election, and you lose ground, you ought to know time is up. The people have spoken, and now that the courts have spoken, Norm Coleman ought to let the process of seating a senator go forward.”

Both sides say ultimate decision in Coleman’s hands
Marc Elias, Franken’s lead recount attorney, said of Coleman’s choices to press the contest into other legal and public opinion courts:  “I think this is going to be a decision that former Senator Coleman is going to have to make about what he wants, how he wants to be remembered for this process ending, what he wants for the state of Minnesota. I suspect that, more than Washington, D.C., political considerations will come in to play.”

On this, even Ginsberg agreed with Elias, notwithstanding some strident comments last week by Republican Senate leaders urging Coleman to delay the inevitable for as long as possible.

“The decision [to press the case forward] is Senator Coleman’s,” Ginsberg said. “He has received much support and advice and good cheer from the members of the Republican Party, but it’s  Senator Coleman’s decision.”

Still, Sen. John Cornyn, chairman of the National Republican Senatorial Committee, released this statement late this afternoon: “Events today do not address the main issue that remains unresolved: over 4,000 Minnesotans were disenfranchised by this three-judge panel. That’s why it’s so critical for this process to move forward before the Minnesota Supreme Court and why Senate Republicans fully support Senator Coleman’s efforts . …

“We want this election to resolve itself as quickly, but not at the expense of Minnesota’s laws or voters … In contrast, the criticisms from the Democrat side as recently as today have expressed the opposite viewpoint. It’s blatant hypocrisy that many of the same Democrats who so loudly complained about voter disenfranchisement during the 2000 Florida recount are now willing to compromise this fundamental principle of our democracy when it no longer fits their political agenda. Senate Democrats should stand down, set partisan politics aside, and respect Minnesota’s laws and voters,” Cornyn said.

And, so, the beat goes on.

The scene
By 8:15 — a full 75 minutes before court was to convene — Tom Gerard, 59, a retired paper mill worker, and Joe Peterson, 55, a Carlton County election judge, were sitting on a marble bench outside of Courtroom 300. They’d driven the 134 miles from Cloquet to, as Gerard put it, “take in the historical nature” of what was to happen.

As if this were a Springsteen concert and tickets would be hard to get, these two recount junkies were first in line.

They — and others — were greeted for the first time by a metal detector. During the seven weeks of trial, security guards sat in the courtroom, but there was nothing this impressive. A courts spokesman said the three judges asked for the magnetometer,  just like the ones in airports.

What then ensued was a morning’s worth of mind-numbing exactitude on the part of the secretary of state’s office staff.

With Poser quarterbacking, the ballots were brought into the courtroom. For an hour, county by county, ballots were taken from the outside envelope of the absentee ballot package. The names of the voters were announced and checked off of lists by lawyers from both sides.

The judges — sitting on their bench seats above the proceedings — watched or read or leaned back or took notes. It was a big day for them, too, so big they’d reserved seats for family members to watch, including Judge Reilly’s mother and Judge Hayden’s husband.

After a brief recess, the mustard-brown secrecy envelopes were removed from the outside envelopes by secretary of state staffers. Poser monitored this. He then placed the outside envelopes in a box on the floor and the secrecy envelopes with the ballots in another box on a table in the middle of the court room.

The cardboard ballots had been folded for months. They were misshapen. The crinkle of paper could be heard. The whoosh of men blowing open the ends of envelopes could be heard. Otherwise, the cone of silence took over Courtroom 300.

Soon, the ballots — stacked perhaps 18 inches high — were placed in front of Poser.

Tony Trimble, Gary Poser, Marc Elias
AP Photo/Jim Gehrz
Minnesota State Elections Director Gary Poser, center, counts absentee ballots today as Coleman attorney Tony Trimble, left, and Franken lawyer Marc Elias observe.

It was the height of diligence and transparency. It was ridiculously Minnesotan, four men in open court, with TV cameras recording it all, silently opening envelopes. C-SPAN was never so riveting.

Mark Ritchie himself, the secretary of state, sat on the second row of the right side of the courtroom.  Minneapolis lawyer Charles Nauen, whose clients brought Franken 41 votes today, monitored the proceedings. Terry O’Toole, one of Karl Rolvaag’s recount officers in the 1962-’63 gubernatorial recount, watched.  Stephanie Schriock, Franken’s campaign manager, looked on.

Gerard and Peterson from Cloquet sat in the back row on the right side of the courtroom.

“Is this the bride’s side or the groom’s side?” Gerard asked.

It was Coleman’s side, but neither Coleman nor Franken was in attendance. Their lawyers were their surrogates.

At exactly 11:06 a.m., Poser began the counting. And, like it did Jan. 3 before the State Canvassing Board, the “Franken” mantra predominated.

“Franken …  Franken …  Franken …  Coleman … Other,” Poser read, after examining both sides of the ballots, with Coleman lawyer Tony Trimble to his right and Elias to his left, gazing over Poser’s shoulder.

History happens in such peculiar places with such odd events. But, like today, it so often unfolds respectfully.

At 11:48, after three piles were established and the counting was done, the numbers were announced: Franken 198, Coleman 111, Other 42.

After a brief exchange about securing the ballots, Judge Hayden said, matter-of-factly, “I believe this concludes these proceedings.”

With that, at high noon, the gavel fell. The recount was over.  The wait resumed.

Remember this . . .
Because memories fade, let’s hearken back to late on the night of Nov. 4, as most Minnesotans were going to sleep. At that point, the then-Sen. Coleman had a 725-vote margin. By the time we woke up on Nov. 5 and late precincts reported, the vote difference was 477.

As the mandatory recount was set to begin two weeks later, after all the straggling votes came in statewide, he held a 206-vote lead.

When the chaotic, competitive, challenge-filled statewide hand recount was completed in December, lo and behold, Al Franken had forged a 49-vote advantage.  Coleman was then on the short end of the 2008 U.S. Senate race margin.

And it’s been getting worse for the former St. Paul mayor. On Jan. 3, after the State Canvassing Board did its official duty, Franken stormed ahead to a 225-vote bulge on the strength of the rejuvenation of previously rejected absentee ballots.

Which brought us to today and the new number: 312.

Of course, it’s not over yet. An optimistic Elias, Franken’s attorney, pronounced it’s still “weeks” before Franken can reasonably be expected to get a signed election certificate from Gov. Tim Pawlenty and Secretary of State Mark Ritchie.

Ritchie said today if and when the Minnesota Supreme Court upholds the expected decision by the three-judge panel, he would sign an election certificate. Gov. Pawlenty has been a bit more coy, suggesting a stay from a higher court might hold up placing his John Hancock on Al Franken’s ticket to the nation’s capital.

But, surely, the drumbeat to hasten the process along will pick up.

As the post-courtroom news briefings ensued, Peterson and Gerard, the gentlemen from Cloquet, watched from the marble steps of the Minnesota Judicial Center.  On a landing below them, Elias, Ginsberg and Ritchie met the press.

It was fascinating. It was historic. They both said the three-hour drive was worth it.

“It was fun seeing the system in action,” said Peterson. “We here in Minnesota take this election stuff very seriously.”

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

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Comments (8)

  1. Submitted by Steve Titterud on 04/07/2009 - 06:19 pm.

    You could fit everything Sen. Cornyn knows or cares about Minnesota in a snuffbox.

  2. Submitted by Dave Kopesky on 04/07/2009 - 07:35 pm.

    Now comes the time when we find out whether Norm Coleman is first and foremost a partisan or public servant. Presumably he will take this to the State Supreme Court and lose. We will then see if he is more interested in slash and burn politics like his party’s national leaders or the best interests of the people of Minnesota. I expect the former but like the majority of Minnesotans, including many who voted for him, hope for the latter.

  3. Submitted by Len Lichtblau on 04/07/2009 - 07:51 pm.

    It’s way too late for Norm Coleman to act like a mensch and quit, despite the fact that it is exactly what he asked Al Franken to do after the initial count, indicated that he had one and that all legal votes had been counted. I suspect that Coleman knows his political career is over and is acting as an agent of the National Republican Party.

    Besides, our governor has already announced that this will not be over for months.

    So, I say, on to the MN Supreme Court, where this battle hopefully will end.

  4. Submitted by David Frye on 04/07/2009 - 09:36 pm.

    The equal protection argument is pure hogwash. What Ginsberg is doing his best to obscure is the concept of waiver. Bell v. Gannaway and the statute establish a time limit for lodging challenges to the qualifications of an absentee voter. Those procedures have been in place for over three decades. By failing to have challengers present at the time the decisions were made concerning which absentee ballots to open were made, he waived his right to challenge them.

    The equal protection argument fails also because, as I stated in an earlier post on Eric Black’s blog, there is no evidence that any failures to uniformly apply the criteria for qualifying absentee ballots was targeted at a suspect classification, such as minorities, women, or those with disabilities. Absent such evidence the EP claim against the procedure is made using the rational basis test. Is the prohibition on challenging an absentee ballot after it has been opened rationally related to a legitimate state interest. The answer is clearly yes because there is a legitimate state interest in finality and ballot secrecy.

    Ginsburg’s arguments remind me of a guy caught for speeding complaining to a cop about all the guys who were going faster than he is who got away with it.

    Of course, the EP argument in Bush v. Gore was BS too, so there’s no telling where this thing will end up. I feel pretty sure that the MN Supremes won’t buy it though.

  5. Submitted by Don Medal on 04/08/2009 - 08:47 am.

    The delays may be helpful to the national Republican Party in that it delays seating another Democrat. At this point, I can’t believe they are helpful at all to the Minnesota Republican Party, nor to Norm Coleman.

    I’d like to see one of our news orgs do a poll as to who Minnesotans think won. That might be illuminating.

  6. Submitted by evelyn blum on 04/08/2009 - 11:33 am.

    If Coleman is acting at this point, just as an agent for the party he represents, and If I was that party’s head, I would throw him out of the party. At this point, he is a joke for the Republican party. He is not acting in light of the public, which is what his job would have been if he had won, to represent what the public wants and needs, he lost, and at this point, he needs to do what the public wants him to do and leave.

  7. Submitted by Brian Simon on 04/08/2009 - 02:56 pm.

    “Unless Coleman’s lawyers can pull out of their hats the world’s greatest legal Hail Mary, this sure looks like the final election score in the trial phase of the Senate contest.”

    The Coleman legal team prays not for an act of god, but merely for a couple activist judges to rewrite the rules in their favor.

  8. Submitted by KAREN LEE on 04/08/2009 - 05:08 pm.

    BEYOND THIS POINT, there BE DRAGONS …
    The GOP is PROVING it’s NOT the party of The People. Taking this SCAM any further makes NO SENSE! The more absentee votes counted -THE FURTHER AHEAD Franken gets. Being short-sighted is endemic of SORE LOSERS, which is HOW Republicans are being seen. What might’ve SEEMED like fair play has sunk to the level of sheer MADNESS!
    The Minnesota Supremes will likely rule two ways: FOR Franken (as 3-judges followed the STRICT LETTER of the State’s laws).
    OR: they will REFUSE to hear the case due to lack of legal merit in Coleman’s case.
    The US SENATE should seat the WINNER, letting the nattering nabobs of NEGATIVISM drone on. Rush, Sean, Glen & all knee jerk whiners are SO FAR out of touch with the REAL PEOPLE of this country.
    The new president has done more in a few WEEKS making America BETTER than Bush did BY LEAVING office.

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