The Court Jousters

  • Article by: KEVIN DUCHSCHERE , Star Tribune
  • Updated: January 10, 2009 - 6:21 PM

The candidates weren't the stars of the recount. Their attorneys were. And they're all gearing up for the next phase, which will unfold in court.

Inside the State Office Building, the time had come to count the "fifth pile" ballots in the U.S. Senate recount -- those absentee ballots that the counties and campaigns had agreed were mistakenly rejected.

Tony Trimble, one of the lead attorneys for Sen. Norm Coleman, requested a delay until hundreds more such ballots could be reviewed for possible counting.

"I think the candidates have had an opportunity to address this process," said Deputy Secretary of State Jim Gelbmann.

"This is a public meeting. I'm going to have my say," Trimble shot back.

"Two minutes," Gelbmann said.

"It may be two-and-a-half, sir," Trimble responded, "but I'm going to have my say."

Trimble's testy exchange illustrated the dual role that attorneys for Coleman and Al Franken have played during the recount battle: all smiles and reassurance before the TV cameras, sharp elbows and legal jockeying during the proceedings.

When the lawsuit brought by Coleman to overturn Franken's lead begins later this month in Ramsey County, those same lawyers -- Marc Elias for Franken, Trimble and Fritz Knaak for Coleman -- will be leading their teams in court.

Their styles and backgrounds are different. Trimble, 55, and Knaak, 56, are longtime Twin Cities Republicans who drape their strategies in a wry mantle of Minnesota folksiness. Elias, 39, a Washington, D.C.-based lawyer with a bear-like frame and intense demeanor, is nationally known for his work with Democratic campaigns, notably as counsel for John Kerry's 2004 presidential bid.

Both campaigns have deep wells of attorneys to tap. Among them are Dorsey and Whitney's Roger Magnuson, on the Coleman side, and former U.S. Attorney David Lillehaug and Minneapolis attorney Charles Nauen in the Franken camp.

Strategy critique

The Coleman legal team has come in for some rough reviews of its strategy during the recount phase, which ended with Franken up by 225 votes.

On Powerline, a local conservative blog that backs Coleman, attorney Scott Johnson criticized Coleman's lawyers as "remarkably passive" and opined that they seemed "flatfooted" when the state Supreme Court ordered the counting of wrongly rejected absentee ballots accepted by all parties.

David Schultz, a political scientist at Hamline University, said the Coleman strategy was flawed because it didn't mesh with state policy that the voter's intent rules. When the Coleman lawyers went to court, he said, it was usually to keep out additional votes.

"They didn't realize that Minnesota law favors counting votes if at all possible, even if there were technical deficiencies in how a vote was cast," he said,

On the other hand, Schultz said, the Franken team's strategy was to urge that every vote be counted and figure out which ones had the best chance of having been cast for their candidate.

Connections to politics

Elias, Knaak and Trimble have in common a deep connection to politics.

Elias' specialty is what he called "political law" -- everything from helping someone become a candidate to handling postelection disputes. He has worked for Minnesotans before Franken, including Sens. Paul Wellstone, Mark Dayton and Amy Klobuchar.

Knaak, a former state senator from White Bear Lake, handled the 2003 legislative recount for GOP state Sen. Grace Schwab of Albert Lea. Schwab conceded the race to DFLer Dan Sparks after a judge ruled she had lost by five votes.

Trimble was chairman of the state GOP from 1987 to 1989. But he quit the post after critics said he was paying more attention to paying off party debts than getting Republicans elected.

Among his critics then was Knaak, who said he and Trimble enjoy a good working relationship: "There's never been friction between me and Tony."

All the lawyers agree on one thing: Their side will win.

"We're confident we're going to prevail. What the margin is, I don't have a prediction," Elias said.

Knaak is just as optimistic.

"Our view is it's really gone all Franken's way, and it's only going to go up for us," he said.

Kevin Duchschere • 651-292-0164

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