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Continued: Senate recount trial turns on what exactly a 'legal' absentee ballot is

  • Article by: KEVIN DUCHSCHERE and KEVIN DIAZ , Star Tribune staff writers
  • Last update: February 12, 2009 - 9:44 PM

The U.S. Senate election trial went topsy-turvy Thursday, with lawyers for Republican Norm Coleman arguing that the Constitution demands the counting of every legitimate vote -- even if you have to bend the rules -- and lawyers for Democrat Al Franken insisting on a by-the-book reading of state law that would limit the number counted to only legally cast ballots.

During an action-packed afternoon, the three-judge panel in the case heard arguments from the Franken and Coleman teams on whether rejected absentee ballots in 19 major categories were legally cast.

The judges also heard from both sides on a Coleman motion to bring a class action on behalf of 11,000 voters whose absentee ballots were rejected, and a Franken motion to block a Coleman witness who plans to testify on ballot rejection rates among Minnesota counties.

It's usually Republicans who express concern over voter fraud and seek stricter identification requirements at the polls, among other safeguards, while Democrats more often champion efforts to increase turnout by making voting easier.

But with Franken ahead by 225 votes in the certified recount results, it's to his advantage to point to black-letter law and to Coleman's to show that the trial is about nothing less than the right to vote.

The arguments Thursday over the 19 categories of rejected ballots turned on which ones to reconsider and which ones to toss out.

The categories touch on a range of situations, such as when application or registration materials are left unsigned, when boxes are left unchecked on an envelope, or when voters are issued a ballot for the wrong precinct or vote in a precinct where they are not registered.

Coleman, who wants to have rejected ballots reconsidered in 16 of the 19 categories, looked on as his attorney James Langdon argued that state law seeks "to do everything possible to enfranchise voters."

Langdon said the boundaries of the case should be set by constitutional standards of equal protection and due process -- making sure that everyone gets a fair chance to vote and that all ballots are treated the same.

The court should presume that an absentee ballot is good as long as it's signed by one registered voter and witnessed by another, he said.

Judge Denise Reilly looked skeptical. "I see that you are not buying this," Langdon said, sparking laughter in the courtroom. "I thought I had a poker face," Reilly replied.

Franken attorney Marc Elias said the court's only job is to determine the number of legally cast votes by strictly following state law. Minnesota sets out a number of rules that absentee voters must follow to prevent fraud from seeping into the process.

If a voter does everything right but an official errs, the ballot should count, Elias said. But he said state law shows a preference for voting at the polls and that the judges should strictly apply statutory requirements for absentee ballots.

The judges didn't indicate when they might issue a ruling.

Coleman made no comment after Thursday's proceedings, but he posted a new video on his campaign website in which he thanks his supporters for their prayers and financial support.

"The court has clearly established the precedent that more votes should and will be counted," Coleman says in the video. "And while Al Franken, [Democratic Majority Leader] Harry Reid and their allies will likely continue their efforts to short-circuit Minnesota election law, you can be assured that I will continue fighting to ensure that Minnesota voters and nobody else truly decide who won this election."

Meanwhile, Franken was in Washington for a two-day policy briefing, including a meeting with Tamara Luzzatto, chief of staff for Secretary of State Hillary Rodham Clinton when Clinton was in the Senate.

Reid has said he will await the decision of the Minnesota court before deciding whether to try to seat Franken. But Franken said he believes Reid will move to seat him provisionally if the state Supreme Court grants him an election certificate pending the outcome of Coleman's election challenge.

"We haven't really talked about it, but that's my best estimation of it," Franken said.

kduchschere@startribune.com • 651-292-0164 kdiaz@startribune.com • 202-408-2753

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