Senate recount: How much longer?

  • Article by: KEVIN DUCHSCHERE , Star Tribune
  • Updated: February 6, 2009 - 11:20 PM

Each candidate wants to introduce hundreds of pieces of evidence and scores of witnesses. So the question remains:

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Whose seat will it be?

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There's something happening here. What it is, ain't exactly clear.

For the past two weeks, the U.S. Senate recount trial has featured wearying hours of questions about voter registration applications, ballot envelopes, voting machine tapes and just about every Election Day document short of the take-out food orders filled out by polling place volunteers.

But as the 10th day of Norm Coleman's legal challenge to Al Franken's lead in the recount drew to a close, the unanswered questions were flying faster than the uncounted ballots:

Are officials from all 87 Minnesota counties going to take the stand? What do the three judges plan to do with all those ballots they're receiving as exhibits?

And, above all, just how long is this thing going to last, anyway?

Hard to say, shrug the lawyers. Dunno, echo court officials.

And the only people who may have answers -- Judges Elizabeth Hayden, Kurt Marben and Denise Reilly -- aren't talking.

Reilly let slip a couple of clues in court Friday, when she reiterated that the panel plans to "make sure that every legally cast and wrongfully rejected ballot is opened and counted."

As for legal and procedural questions that have been churned up, Reilly said that the judges "have talked about a motions day when we will consider these issues."

Coleman, who filed the lawsuit challenging Franken's 225-vote lead the day after the results were certified last month, has attended several days of the trial.

Franken hasn't been there yet, although he said during an interview Friday that he occasionally checks an online trial feed supplied by the UpTake website. He said he finds it entertaining, at least sometimes.

Franken's thoughts about the trial? "I could see it [going] slightly faster. That would be nice," he said, chuckling. "But I have a lot of faith in my team, and I'm certain that we're going to prevail."

Portent of spring?

Although no one can say for sure how long the trial will run, the evidence so far -- circumstantial though it is -- suggests that lawn mowers may replace snow shovels by the time it's over.

The witness list for Coleman includes 111 officials and private citizens, and 39 eligible voters whose absentee ballots were rejected. His exhibit list -- made up of such things as rejected ballots, e-mails between election officials, voter rosters and depositions of county auditors -- adds up to at least 233 items that may be received as evidence.

Ben Ginsberg, a lawyer for Coleman, said his team won't necessarily be calling officials from all of Minnesota's counties. But there are a number they plan to question, he said.

"There is a lot of evidence and information in these [recount] cases, and the judges are doing a thorough job of educating themselves," said Ginsberg, who specializes in election law.

Franken's potential arsenal is even bigger. His legal team is prepared to call up to 164 officials and private citizens, along with 702 voters.

And more than 800 items are on the Franken exhibit list, which includes much the same material as Coleman's, but more correspondence between campaign attorneys and election officials as well as stories about Coleman and press releases from his campaign.

Coleman's team has been drawing on his witnesses and exhibits to lay the foundation for their case that more rejected absentee ballots ought to be counted because counties used different standards and procedures to decide whether to declare a vote valid.

The judges this week agreed to allow evidence to be introduced on 4,800 such ballots.

Who's counting?

No one can say with any certainty for whom those votes were cast.

The bigger questions, for now anyway, are how final decisions will be made about which votes to count and how those will be counted in the trial. Although Reilly said that she and her colleagues want to make sure every valid vote is counted, she didn't say who would do the counting.

Minnesota's last big recount, the 1962 governor's race, might provide some ideas. In that case, three judges were appointed to oversee the recount and appointed bipartisan teams around the state to slash the number of disputed ballots from 97,000 to 3,851.

In the trial that followed, those ballots were sorted into categories -- all those with strange voting marks were put together, or those apparently marked for two candidates. Instead of considering every ballot by itself, the judges agreed to turn thumbs up or down on entire categories of ballots.

That trial was over in three weeks.

No wonder they call them the good old days.

Kevin Duchschere • 651-292-0164

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