Recount drama moves into judges' chambers

  • Article by: KEVIN DUCHSCHERE , Star Tribune
  • Updated: March 15, 2009 - 11:05 PM

The Senate election spotlight has swung from lawyers to the three judges in the Coleman-Franken recount contest.

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Minnesota Judges Kurt Marben, left, Elizabeth Hayden, center and Denise Reilly, confer with Al Franken's attorney David Lillehaug and former Senator Norm Coleman's attorneys Joe Friedberg, and Tony Trimble, right, during Minnesota's U.S. Senate vote recount trial in St. Paul, Minn., at the Minnesota Judicial Center on March 9 , 2009.

Photo: RICHARD SENNOTT, Star Tribune

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Now comes the decision.

This week, the drama in Minnesota's U.S. Senate election trial shifts temporarily offstage, to the chambers of three district court judges who took copious notes and said little in the courtroom as stacks of evidence binders rose behind them through seven weeks of testimony and legal debate.

Gone from the spotlight, for the moment, are the squadrons of pin-striped lawyers who dominated Republican Norm Coleman's trial challenging Democrat Al Franken's 225-vote lead in the U.S. Senate election recount, quizzing witnesses in the courtroom and briefing reporters outside it.

The judges -- Elizabeth Hayden of Stearns County, Denise Reilly of Hennepin County and Kurt Marben of Pennington County -- with 44 years of experience on the bench among them, will have to decide whether to count 132 ballots that went missing in Minneapolis and whether to recount ballots in some Minneapolis precincts where unmarked duplicates may have led to double votes.

And then there is the biggest decision of all, and the one that probably will make or break Coleman's effort to overtake Franken: whether to insist on strict adherence to the legal requirements the judges set for counting wrongly rejected absentee ballots, even though evidence suggests that looser standards sometimes prevailed on Election Day and during the recount.

Coleman attorney Joe Friedberg argued Friday that the legal requirements should be applied loosely. Hamline University law Prof. David Schultz characterized that as the idea that the Coleman team has offered enough evidence "that a reasonable person would say, 'Yeah, you've offered a good explanation'" why a rejected ballot should be counted.

The kind of evidence that the judges accept will be key in deciding how many of Coleman's 1,360 and Franken's 252 rejected absentee ballots they decide to count, said election law expert Edward Foley of Ohio State Uiversity.

Franken says that Coleman has proven only six ballots to the judges' standards, while Coleman says it's more likely than not that many more are valid. As for his 252 ballots, Franken's lawyer say they meet every element outlined in the judges' orders, and Coleman's lawyers didn't disagree.

Pressure is on

The court's Feb. 13 ruling -- the "Friday the 13th ruling," as Coleman's lawyers dubbed it -- was the pivotal moment in the trial, Foley said. The ruling eliminated from consideration several categories of absentee ballots and cut deeply into Coleman's stock of potential votes. It led the Coleman lawyers to urge the judges either to rescind the order or uncount ballots already cast, on grounds that the order made them illegal.

It was an argument of "ambivalence" that made it unclear whether Coleman's team was attempting to win this round or plan for the next, an appeal to higher courts, Foley said.

One difference may have been the legal teams. Franken brought in Marc Elias, a Washington-based attorney who represented the Kerry-Edwards presidential campaign in 2004, and Elias' law partner Kevin Hamilton, a Seattle attorney who was trial counsel for Christine Gregoire in her successful contest to become governor of Washington in 2004.

To lead his effort, Coleman chose mostly local attorneys, including Friedberg, a skilled defense lawyer who nonetheless acknowledged his unfamiliarity with election law. Ben Ginsberg, a Washington lawyer who was instrumental in George W. Bush's Florida recount effort in 2000, has been Coleman's spokesman.

"It seems that Franken has benefited from more attorneys with election experience," said University of Minnesota political scientist Kathryn Pearson.

How the court decides on two motions -- Coleman's request to review all 280,000 absentee ballots in light of the court's orders, and Franken's request to dismiss the case -- will provide clues on the final decision, Foley said.

Schultz said that may not come until April.

"The judges will have to be writing this opinion fully cognizant that there will be an appeal. They won't write it overnight," he said. "I'd even say, for these judges, it will be the most important decision they'll ever write. The pressure will be on them."

Kevin Duchschere • 651-292-0164

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