If Franken wins, he wants Coleman to pay court costs, some lawyers’ fees

Each side submitted summaries of its case to the three judges who are deliberating in the Senate election contest.

By PAT DOYLE, Star Tribune

Last update: March 18, 2009 - 11:44 AM

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Democrat Al Franken wants the judges who heard the U.S. Senate trial to force Norm Coleman to pay court costs and some opposing lawyers' fees -- a potentially expensive bill -- if the Republican loses his bid to overturn the results of the recount.

Franken sought such payments in a document filed Tuesday summarizing his case. In it, he also asks the judges to consider evidence involving 430 absentee ballots that he had identified as wrongly rejected, and is asking specifically that 252 of them be counted.

Coleman also filed his summary of his case Tuesday, reiterating in detail his argument that wrongly rejected absentee ballots, missing and twice-counted ballots cost him the election. Recount results certified in early January showed Franken on top by 225 votes.

Franken's document asks that Coleman pay the costs of the seven-week trial. And in seeking attorneys' fees for Franken lawyers, it refers to sanctions that the judges earlier imposed on Coleman for failing to follow court rules on disclosing information about a witness, Minneapolis election judge Pamela Howell.

Franken asked for "reasonable costs and attorneys' fees in connection with [Coleman's] failure to disclose."

Asked whether the request for attorneys' fees was limited to fees involving the disclosure flap or other expenses, Franken lead lawyer Marc Elias said, "We're going to leave it to the court to decide that."

Absentee ballots

During closing arguments on Friday, a Franken lawyer told the three-judge panel that the campaign had identified at least 252 rejected ballots that deserve to be tallied. Those were in addition to 47 others the campaign and Franken supporters persuaded the panel to accept during the trial.

In a document first given to the panel on Saturday, and then in a new version on Tuesday, Franken included all of those ballots plus another 131 that had been admitted as evidence during the trial.

Nearly half of the 430 were cast by residents of counties that Franken won by 10 percentage points or more. Coleman has identified about 1,360 rejected absentee ballots for counting, with one-third of them from counties he won by 10 points or more.

In the document he filed Tuesday, Franken said Coleman was seeking to count 1,369 rejected absentee ballots, and that only 19 had merit. Franken had put that number lower on Friday.

Rejected absentee ballots became the focal point in the seven-week trial as both candidates worked to admit ballots from areas friendly to them during the election. The panel's decision on which ballots to count will play a crucial role in ultimately deciding who won.

In identifying the 252 ballots last week, Franken lawyer Kevin Hamilton described them as having proved all of the requirements for counting. The additional ballots included in the court document Tuesday lack some of those elements but were identified by Franken and admitted into evidence during the trial, some for the purpose of proving other elements of his case.

"We're putting them all before the court for consideration," said Franken spokesperson Jess McIntosh. "We're directly asking them to count 252."

The more marginal ballots could help Franken if the panel accepts a version of the Coleman argument that it use "common sense" in deciding which ballots to count, rather than a stricter interpretation of state statute. Such a ruling would allow the judges to count many of the ballots the Republican has identified that otherwise might remain rejected, and Franken's marginal ballots could be used to offset them.

Pat Doyle • 651-222-1210

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