‘This Is Not Florida’: A quagmire — and the judges speak volumes with silence

Coleman lawyer Ben Ginsberg was awash in a sea of numbers involving ballots counted and uncounted.
MinnPost photo by Jay Weiner
Coleman lawyer Ben Ginsberg was awash in a sea of numbers involving ballots counted and uncounted.

This is the last of three excerpt from “This Is Not Florida: How Al Franken Won The Minnesota Senate Recount” by Jay Weiner. This focuses on Sen. Norm Coleman’s lawyer and spokesman, nationally known Republican elections expert Ben Ginsberg, who also was a key player in the George Bush-Al Gore 2000 presidential recount in Florida. The date here is Feb. 18, 2009, and the election contest was heating up; the contest was the trial in which Coleman sought to overturn the ruling of the State Canvassing Board that Al Franken had garnered the most votes. The trial court’s three-judge panel had already made decisions indicating that Coleman’s case was on shaky ground. So, too, was Ginsberg.

Maybe Ben Ginsberg realized he and Norm Coleman had lost and so decided to yell at the referees. Maybe he figured it was the only way to keep the fundraising for the expensive recount effort going. After a February 13 ruling that limited the categories of ballots the three judges said they would examine, the Coleman lawyers asked the judges to reconsider their decision.

But beginning on February 18, after the judges refused to reconsider their ruling, Ginsberg freaked and starting blasting away at the panel. He issued statements, he talked in the hallway outside the courtroom, he poetically dubbed it the “Friday the thirteenth” ruling, as if more a horror movie than a judges’ opinion, and he launched the Coleman effort of questioning the legitimacy of the election and the competency of the judges.

He said, in a bold written statement,

… The net effect of the court’s February thirteenth ruling, and their decision to not reconsider this ruling, is a legal quagmire that makes ascertaining a final, legitimate result to this election even more difficult.

The next morning, the six lawyers — three from each side — made their daily chambers appearance before the three judges. They took their appointed seats on one side of the long, polished table. The judges had put on their robes in the room nearby and entered, with Coleman lawyers Jim Langdon, Tony Trimble, and Joe Friedberg rising alongside Franken lawyers David Lillehaug, Marc Elias, and Kevin Hamilton, as the judges approached their seats on the other side of the table.

“Well, gentlemen, welcome to the quagmire,” said Stearns County District Court Chief Judge Elizabeth Hayden, in her best, acerbic vice principal voice. If anyone felt the judges were living in a bubble, reading and writing briefs and not following Ginsberg’s and Elias’s hallway shenanigans for the media, they were wrong. Ginsberg’s comments, as Langdon put it in military terms, “had taken us to DEFCON 1, threat level red.” Mr. Ginsberg was in the doghouse.

Friedberg, the respected veteran Minneapolis trial attorney, had been uncomfortable with Ginsberg going after the judges. It wasn’t a Minnesota thing to do, and the statement about a quagmire and questioning a “legitimate result” came on a particularly odd day. While he had been in St. Paul for a month and in the courtroom almost daily, Ginsberg never was formally admitted to participate in the trial. So, at some point in mid-February, it was decided he should file what is known as a pro hac vice petition. Pro hac vice is Latin for “this occasion” or “this event,” and it’s a way for licensed attorneys from other jurisdictions to practice law in a state in which they have not passed the bar exam. Elias, from Washington, D.C., and Hamilton, from Seattle, for instance, had been admitted pro hac vice at the beginning of the case. It is considered a routine deal. Ginsberg happened to file his petition on February 18, the day he made the quagmire statement.

The judges never ruled on it. It just sat there like a dead fish on their piles of motions and briefs…

By March 13, the election contest trial testimony and arguments were over. By April 13, the judges ruled unanimously that Franken had won more legal votes than Coleman. By June 30, the Minnesota Supreme Court upheld the three-judge panel. On July 7, 2009, Al Franken was sworn in as Minnesota’s junior U.S. senator.

The Bush-Gore recount took thirty-six days to wrap up in Florida. The Coleman-Franken recount needed thirty-five weeks to be resolved in Minnesota. This was not Florida.

Excerpted from “This Is Not Florida” with permission from the University of Minnesota Press.

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Comments (5)

  1. Submitted by Paul Landskroener on 10/13/2010 - 11:31 am.

    Thanks for printing these excerpts; I definitely want to read the whole book now.

    This final excerpt confirms what was clear to me from the start: Coleman’s legal advice and strategy stunk. They made stupid legal strategic decisions and executed them carelessly. They thought it was Florida, and it wasn’t. They were also, as this excerpt indicated, politically inept. Norm Coleman has no one to blame but his advisors for his loss.

  2. Submitted by Eric Ferguson on 10/13/2010 - 02:18 pm.

    I have to dispute Jay’s characterization, “The Bush-Gore recount took thirty-six days to wrap up in Florida.” It never wrapped up. It was stopped by the US Supreme Court. The ballots were never counted until journalists did it in 2001. Interestingly, under a Minnesota standard, where all ballots were counted according to the intent of the voter, Gore won. Had Florida had a clear standard and defined rules before their recount ever came up, we’d have been spared the Bush era.

    I have to disagree with Paul’s comment about the Coleman lawyers screwing up. They screwed up the PR and no doubt irritated the judges by trying to undercut the legitimacy of the court they were appearing before, but that doesn’t alter the fact the votes just weren’t there for Coleman. Franken pulled ahead when the challenges were resolved, and Franken couldn’t know his lead would grow when he raised the issue of some absentee ballots being wrongly rejected. His lawyers were smart to make that an issue, but had Coleman realized the resolution of challenges would leave him behind, he surely would have raised the absentee issue too. So I just can’t see how the quality of legal advice had a bearing on the outcome.

  3. Submitted by Henk Tobias on 10/13/2010 - 08:29 pm.

    At this point we are not Florida, but I fear that we are moving more toward them, not they toward us. We now have Judges campaigning, much like they do in other states, soon big money will flow to electing judges on ideological terms rather than judicial terms. One billboard I read said: Republican Endorsed. We are continuing the long slow slide that T-Paw and his brethren started.

  4. Submitted by Bernice Vetsch on 10/14/2010 - 09:25 am.

    THANK YOU,Mr. Tobias (#3) for raising this issue. While Lori Sturdevant is working on what will be her third article on the subject of electing state court judges, most other journalists are ignoring what would be a politicization of our court system.

    The Republican Party has endorsed four candidates for judgeships. The Constitution Party has endorsed one of them and the Republican Women one. Each is also endorsed by a group called Justice in Minnesota, which seeks to replace our current system (commission gives governor three names, governor chooses and appoints his choice, appointee must be re-elected by popular vote on a nonpartisan ballot) with direct popular election for a judge’s first and succeeding terms.

    Candidates could seek party endorsement and financial support from it and from voters and from those front groups through which supporters who want to hide their identities contribute.

    Candidates could campaign by advertising their positions on hot-button social issues like abortion or gay marriage to garner votes from those who would like to see court cases decided according to their own beliefs. Most are Christian fundamentalists and strict constitutional constructionists.

    The four candidates are:
    Greg Wersal, long-time pusher of this change and winner of a 2002 Supreme Court case allowing partisan, money-driven campaigns. He hopes to unseat Supreme Court Justice Helen Meyer.

    Tim Tingelstad seeks to replace Alan Page of the Supreme Court. He says “The Church must return to its vital role of supporting and influencing the State.” (See http://www.highesthill.com, his very religious web site.)

    Dan Griffith wants a seat on the Minnesota Court of Appeals (14) and opposes incumbent Laurence Stauber. He opposes an amendment to the State Constitution (SF-70)that would permanently retain the current system of elections for retention only. “We can win over the Executive and Legislative branches and still lose because the Judicial Branch can overturn the other two.”

    Chris Penwell, candidate for a judgeship in the 10th Judicial District, is endorsed by both the Republican Party and Republican Women. He lists as one of his “core values” that he is a “strict constructionist, and not finding non-existent rights in the Constitution.

    We must not allow this challenge to the system that has given us honest and fair judges for decades to succeed. And public education on which judges would work to destroy it is dearly needed. Letters to the editor, please!

  5. Submitted by David Willard on 10/14/2010 - 06:20 pm.

    MinnPost=La Brea for Libs. So cool to watch in action.

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