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Continued: Senate decision: Are we there yet?

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  • Last update: March 1, 2009 - 7:30 AM

If you're not at least a bit confused by the U.S. Senate trial, you haven't been paying attention. After slogging along for five weeks, you're forgiven for feeling bogged down in a swamp of election minutia. Absentee ballots counted and uncounted. Original ballots and duplicates. Ballots lost and ballots found. Ballots still missing. What does it all mean and where is it heading?

 

What's at stake in this case?

A A U.S. Senate seat, of course. But which case? There are at least two in the works. The trial in St. Paul is intended to figure out whether Republican Norm Coleman or Democrat Al Franken got the most legitimate votes under a state law interpreted by three judges. But Coleman also is widely believed to be preparing to challenge the fundamental fairness of the state election system in appeals to the Minnesota Supreme Court or federal courts. That's if he loses the trial. Don't look for Coleman to complain about fairness if he wins.

Q Why has this trial gone on so long?

A Because Franken and Coleman shook down supporters for tens of millions to wage a bitter election campaign and they owe them a good show in overtime. They've spent even more money to enlist battalions of lawyers who earn their keep by filing reams of motions and memorandums. With much at stake in the Senate, neither candidate can afford to disappoint his base. Labor unions want Franken to seal the deal. Business leaders don't want Coleman to quit.

 

Q What are the main areas of dispute?

A There are three. There is Coleman's claim that more than 100 votes in DFL-heavy Minneapolis were counted twice after copies of damaged ballots were fed into tabulating machines. He also has questioned whether Franken was helped by the way officials responded when 132 ballots disappeared from another DFL stronghold. The Democrat says there's no evidence of real problems in either of those situations.

By far most important, the two sides are scrapping over thousands of absentee ballots.

Q How important are each of these disputes in determining who won?

A Franken captured a 225-vote lead after the recount ended in early January. Coleman says the 132 missing ballots should have cost Franken 46 of those. If Coleman succeeds in stripping away those and most of the other ballots he's questioned in Minneapolis -- a very big "if" -- he would only cut Franken's lead in half. Coleman needs to persuade the judges to take another look at uncounted absentee ballots if he is to have a fighting chance.

Q Why are the absentee ballots such a Big Enchilada?

A There are a lot of them. And a significant minority were rejected by county election officers after voters, witnesses or local election officials screwed up, often submitting them without required signatures. (There were many other foul-ups, but in the interest of saving trees, let's quit now with the examples.) Coleman is hoping the judges will count about 2,000 new ballots. Franken has his own list of 800 that he wants counted, hoping enough will break his way to blunt any gains by Coleman.

Q How did Franken and Coleman decide on which rejected absentee votes they now want counted?

A At this point, let's pause to salute the flag and high-minded political discourse. Both men say they want to count every valid absentee ballot. But as it happens, they've mostly chosen rejected ballots from places that supported them. For Coleman, that means most of suburban and rural Minnesota. For Franken, it's urban Twin Cities, Duluth and the Iron Range.

Q But they're cool with not touching absentee ballots already counted in the election, right?

A Not Coleman. He wants to review all 286,000 tallied in the state. He says many are now rendered illegal by rulings of the judges. The judges, he says, should enforce their rules universally or relax them and let in more new votes. Franken opposes the review, saying it would give Coleman authority to challenge a large chunk of lawfully counted ballots.

Q Can we figure out which counted ballots are illegal under the judges rulings?

A Good luck. The counted ballots were separated from the envelopes that would now identify them as illegal. Reuniting them is like unscrambling an egg. So Coleman says if you can't subtract faulty ballots that were counted, then count faulty ones that were rejected.

Q How are the judges taking all of this?

A They haven't been persuaded to review counted absentee ballots, though they're considering Coleman's request. As for rejected absentee ballots, they excluded perhaps 1,500 that Coleman wanted counted. His lawyers then criticized the judges for creating a "legal quagmire."

Q Why would lawyers criticize the judges hearing their case?

A Because, remember, it's not the only case being heard. An appeal would require more money from supporters. And Coleman's lawyers, in wagging their fingers at the court, are signaling loyalists -- if not the judges -- that they just might win the next round.

Q What would the nut of an appeal be?

A Coleman's lawyers argue that the state's handling of absentee ballots is fundamentally flawed. Elections officials in one suburban county check to make sure a ballot conforms with state statute and reject those that don't. Their counterparts down the road aren't so strict. The state Canvassing Board accepted ballots that contained flaws identical to those on ballots rejected by the judges. Coleman's lawyers say the disparities violate the federal Equal Protection Clause or state standards of fairness.

Franken lawyers say these are typical problems found in any election.

Q What's the Equal Protection Clause?

A Part of the 14th Amendment to the U.S. Constitution, it says: "No state shall ... deny to any person within its jurisdiction the equal protection of the laws."

Q Does this argument have legs?

A Maybe yes, maybe no. But if a court doesn't want to count additional illegal ballots, and can't or won't remove illegal ballots already counted, it may not be able to determine who got the most legally cast votes in the November election.

Q What happens then?

A A bunch of possibilities. Senate Democrats might try to seat Franken. The U.S. Supreme Court could be asked to get involved. Calls for a new election could be heard. Considering the players, it's the $100 million question. Or more.

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