Senate recount trial: Copies of ballots don't cut it

Photocopies of absentee ballots offered by Coleman's lawyers caused confusion; judges want to see originals.

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Norm Coleman, right, sat with his legal team during opening arguments Monday in his election contest suit over the Senate recount.

Photo: Ben Garvin, Associated Press

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The trial to determine Minnesota's disputed U.S. Senate election got off to a slow start Monday -- and then bogged down.

The trouble came over testimony that workers for Republican Norm Coleman's campaign had marked or obscured copies of some absentee ballot envelopes offered as evidence. The acknowledgment provoked confusion and prompted the judges to demand the original documents.

On that note, the first day of the trial abruptly halted, leaving the second's agenda something of a mystery.

That turn promised to prolong a trial that Coleman lawyer Joe Friedberg predicted in his opening statement would be "extremely tedious" and involve the examination of 5,000 ballots, one at a time.

The Coleman campaign is arguing as part of its court challenge that as many as 5,000 rejected absentee ballots from the Nov. 4 election should be counted. It says those ballots are comparable to some that were judged wrongly rejected and counted during the administrative recount.

The claim is the centerpiece of Coleman's effort to overturn recount results that left DFLer Al Franken with a 225-vote lead.

The day's proceedings slowed after Franken lawyer Marc Elias questioned a Coleman witness about envelopes for more than a dozen absentee ballots that the Coleman campaign said were marked "accepted" but were not counted by county elections officials

Judge Denise Reilly, a member of a three-judge panel hearing the case, asked the witness how a judge could determine who made marks on copies the campaign made of some of the rejected absentee ballot envelopes. Without seeing the originals, "it's difficult to know that completely," replied Gloria Sonnen, who is working with the Coleman recount lawyers.

"It's not apparent to the panel that the witness can explain all the markings on these proposed exhibits and how they differ from the originals," said District Judge Kurt Marben, in asking for the originals.

Earlier, Coleman political director Kristen Fuzer acknowledged under questioning by Elias that Coleman campaign workers, in photocopying copies of documents that county officials sent them, sometimes cut off or obscured the reasons that counties gave for rejecting absentee ballots. For instance, in one case, "no registration" was cut off during photocopying.

The Coleman campaign said the markings and copying were oversights or innocent methods to keep track of documents. The Coleman campaign had asked for permission to reinspect the original rejected absentee ballots as part of major review proposed last week, but that was denied.

The panel decided Monday to allow copies to be introduced, at least temporarily, but, after deliberating briefly in private announced that in order for Coleman to press his case on absentee ballots, it needed to see the original ballots.

Next steps uncertain

Coleman attended the first day of the trial and afterwards said he is likely to attend more of the proceedings.

"This is important to me, it's important to Minnesota," Coleman said. "We are at a critical moment right now. I wanted to be here and observe, and I'm thrilled that I'm here."

Coleman legal spokesman Ben Ginsberg said the Franken challenge to the copies of absentee ballot materials "is a way of prolonging and really stretching out the resolution of this." He said Coleman's legal team would take up their claim today that counties applied varying standards in rejecting similar absentee ballots and do it with copies of documents that are free of marks.

After the court adjourned, lawyers met in the courtroom with the judges to go over what might happen next.

"We are not confident that, based on the exhibits you offer, we are clear and confident of the status of those ballots," District Judge Elizabeth Hayden told the Coleman lawyers.

Friedberg told the judges he had planned to use the next six days going over the photocopied envelopes.

Coleman lawyer Tony Trimble said it wasn't necessary to call local elections officials to testify on why they rejected absentee ballots. But Elias said local officials should have a chance to defend their decisions.

Friedberg told the judges he had not planned to focus on other issues, including missing ballots found in Maplewood and St. Paul, until next week. The Coleman lawyer said he would introduce some other ballots, known as "control exhibits," that would show ballots that were accepted. But those, too, could be subject to challenge by the Franken campaign.

"I would say, based on what happened today, you'd better have a couple of backup witnesses," Judge Hayden told Coleman's lawyers.

'No election is perfect'

During opening statements, Friedberg called for leveling the playing field to allow many more votes to be counted, while Franken lawyer Kevin Hamilton said the work of election and recount officials, while imperfect, should be respected. Franken did not attend the hearing, and Elias said he did not anticipate that Franken would be present at the rest of the trial.

While the Coleman campaign has sought a reconsideration of 11,000 rejected absentee ballots, Friedberg focused on about 5,000 that he said resembled 933 previously rejected absentee ballots that were ultimately accepted by local officials around the state.

Friedberg said many of the decisions to reject ballots were "overjudicious" and disenfranchised voters through no fault of their own. He said those rejections included cases where officials sent ballots to the wrong precincts, applications that can't be located or signatures that aren't on the signature line but are someplace else on the ballot envelope.

Franken's attorneys asked the panel to limit any consideration of counting more rejected absentee ballots to the 650 Coleman cited in his initial lawsuit petition, not the roughly 11,000 he has been citing more recently.

Hamilton said that the court should not require the election results to be perfect and that Coleman has not met the burden of showing that serious errors affected the outcome of the election.

"No election is perfect. That's not news," Hamilton said.

Hamilton said state law presumes that voting officials acted in good faith and the vast majority of rejected absentee ballots were rejected because they should have been.

"The standard is settled, constitutional, and simple," Hamilton said. "Overturning the result of the recount would be a breathtaking exercise in judicial power that should be undertaken in the rarest of cases and only under the most powerful of evidence."

pdoyle@startribune.com • 651-222-1210 mbrunswick@startribune.com • 651-222-1636

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