Senate recount trial: Franken's team asks for dismissal

  • Article by: PAT DOYLE , Star Tribune
  • Updated: March 5, 2009 - 9:19 PM

The DFLer's lawyer's said Coleman's camp failed to back up claims of extensive election errors. Coleman's team will respond today.

Nine ballots. That's what Democrat Al Franken's lawyers say Norm Coleman has to show after nearly six weeks of courtroom combat in the U.S. Senate election trial.

On Thursday, Franken's lawyers asked the three judges hearing the case to dismiss some or all of Coleman's claims, even as they continued to introduce evidence in court about absentee ballots they said were wrongly rejected.

Franken's attorneys said Coleman's team "failed to meet [the] burden of proving that a voter's absentee ballot was improperly rejected" for the great majority of ballots they identified.

Only nine ballots were shown to be wrongly rejected during Coleman's five-week presentation, Franken's lawyers claimed.

Coleman lawyer Ben Ginsberg accused the Franken campaign of "fuzzy math" and said "motions to dismiss at this stage are kind of what lawyers do." The Coleman campaign is expected to respond to the dismissal motion today.

Ginsberg also reiterated his longstanding contention that the Coleman campaign believes at least 2,000 rejected absentee ballots should be counted.

The number is important because the Coleman team has focused much of its effort on having rejected ballots added in an effort to overcome Franken's 225-vote lead.

Franken lawyer Marc Elias acknowledged that more than nine rejected ballots Coleman wants counted may ultimately turn out to be valid, but added: "You're talking about dozens, not talking about hundreds."

Shrinking pool

A bid by one side to dismiss a lawsuit at the completion of the other side's case occurs frequently in trials.

Coleman rested most of his case Monday, but his lawyers have used testimony from some of Franken's witnesses to advance their argument that the Minnesota election system has serious problems. They will have the opportunity to further challenge Franken's case during rebuttal after the DFLer's lawyers have completed their case.

Before the trial began, Franken's team also sought to have the case dismissed but was unsuccessful.

In court Thursday, Franken attorney Kevin Hamilton questioned Duluth City Clerk Jeff Cox about dozens of absentee ballots, most of them rejected because the dates accompanying the voter and witness signatures didn't match.

St. Louis County later had identified them as votes that should be counted, but they were vetoed by the Coleman campaign for the recount tally.

Ginsberg said the court had blocked Coleman's efforts to introduce evidence about other St. Louis County ballots that were counted on Election Day but which he said had since been made illegal when the court on Feb. 13 excluded several categories of rejected ballots from possible reconsideration.

Earlier in the trial, the Coleman camp wanted the court to consider counting nearly 5,000 rejected absentee ballots. The panel on Feb. 13 effectively narrowed the field to 3,687, Franken said in the motion.

Those ballots break down geographically in a way similar to the roughly 5,000 ballots. Excluding politically diverse Hennepin and Ramsey counties, about 80 percent of the ballots are from counties Coleman won by 10 percentage points or more in November.

But there are about 600 fewer ballots from those strong Coleman counties now than what he had to work with before the Feb. 13 ruling.

Franken says that Coleman has failed to provide either documents or testimony that prove that most of those ballots were validly cast.

"For these ballots [Coleman has] not demonstrated that a voter filled out an application, that the voter's signature on the application matches that on the return envelope or that his or her name and address are the same, or that the voter signed the envelope."

Still divided

More Minnesota voters now believe that Franken rather than Coleman won the Senate race, according to a Rasmussen Reports poll released Thursday.

According to the survey, 47 percent of 500 likely voters said they think Franken is the new senator, as opposed to 35 percent who said they believe Coleman was reelected. The poll also said 71 percent of Republicans favor a new election, while 69 percent of Democrats oppose the idea.

Staff writer Kevin Duchschere contributed to this story.

Pat Doyle • 651-222-1210

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