Rhetoric over Senate trial gets angrier

Norm Coleman's legal team says judges allowed in illegal votes. Al Franken's lawyers say their foes are shifting focus to their appeal.

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Judge Elizabeth Hayden, center, calls a bench hearing with attorneys for Al Franken and Norm Coleman during the U.S. Senate election trial at the Minnesota Judicial Center in St. Paul.

Photo: RICHARD SENNOTT, Star Tribune

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The judges hearing the U.S. Senate election trial have converted hundreds if not thousands of already counted ballots into illegal votes, Norm Coleman's lawyers said Friday as the four-week-old contest threatened to turn into a donnybrook.

Last week's "Friday the 13th" order, as Coleman lawyer Ben Ginsberg referred to it, defined what he said the judges consider an illegal vote. He said that ruling should either be changed or applied equally to all 288,000 absentee ballots that were cast on or before Nov. 4.

Acknowledging that rescinding votes already counted may prove impossible, Ginsberg reiterated that the campaign's preferred remedy is for the court to allow more rejected ballots to be reconsidered.

But Marc Elias, Al Franken's lead attorney, said the Coleman motion filed Friday afternoon and another related motion earlier in the day show that they're concentrating not just on the trial that the Republican started to overturn DFLer Franken's 225-vote recount lead.

"They're obviously setting up for some type of appeal or other collateral legal review, rather than focusing on the rules that have been set forth here," Elias said.

"The various statements you've heard out of Mr. Ginsberg and others about the way they've characterized where the court stands, I think, all suggests that they have an audience in mind that goes beyond this court."

Ginsberg said the current trial is the Coleman team's focus.

Recount ballots in dispute

Before recessing Friday, the court heard arguments on Coleman's request for a temporary injunction to preserve intact 933 formerly rejected absentee ballots that were included in the recount's final phase. Both campaigns agreed not to further contest those ballots only two and a half weeks ago, but Coleman's camp has asserted that the Feb. 13 order altered the situation and that about 100 of the 933 accepted ballots would be disqualified under the ruling. Judge Elizabeth Hayden said the panel of three judges would issue an order on Coleman's request as soon as possible.

Revisiting the 933 ballots already may be impossible. Deputy Secretary of State Jim Gelbmann said Friday that his office had begun redacting the identifying information from them, according to a schedule recommended by the attorney general's office.

The panel ordered the redactions after the campaigns agreed that the ballots were properly counted.

A call for sanctions

Franken's campaign said that Coleman lawyers ought to be sanctioned for what it called their irresponsible reneging on the stipulated agreement.

"This is the next step in an attack on the integrity of Minnesota's election system, and, I believe, a step toward attacking the legitimacy of this proceeding," said Franken attorney David Lillehaug, responding in court to the Coleman injunction request.

James Langdon, who argued the motion for Coleman, said he resented Lillehaug's implications. "They are not true," he said. He said that Coleman would prefer to have all 12,000 rejected absentee ballots reconsidered, but that the court had ruled otherwise. Langdon said that Coleman had entered into the stipulation on the 933 ballots "in utmost good faith," but that the court's Feb. 13 order had enforced different standards for remaining ballots.

"This is about whether votes were legally cast or illegally cast," he said.

Earlier this week Coleman's lawyers downplayed the likelihood of challenging ballots already counted, saying they preferred that the judges would reconsider their ruling to allow similar rejected ballots to be counted. The panel denied the request.

In another development Friday, Politico reported Friday that the Republican National Committee transferred $250,000 last month to the Minnesota Republican Party to help Coleman with his legal fees.

kduchschere@startribune.com • 651-292-0164 pdoyle@startribune.com • 651-222-1210

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