Senate recount trial: Judges' ruling is boon to Franken

Absentee ballots to be counted will be far fewer than Coleman sought in effort to close the U.S. Senate gap.

Norm Coleman's lawyers all but conceded defeat Tuesday and promised to appeal after a panel of three judges ordered no more than 400 new absentee ballots opened and counted, far fewer than the Republican had sought to overcome the lead held by DFLer Al Franken.

The ballots include many that Franken had identified as wrongly rejected as well as ballots that Coleman wanted opened in his quest to overcome the 225-vote lead that Franken gained after a recount in Minnesota's U.S. Senate race.

"We are very pleased," said Franken lead lawyer Marc Elias shortly after the ruling, which calls for ballots to be opened next week.

Coleman legal spokesman Ben Ginsberg acknowledged that the Republican may have lost the seven-week trial and was prepared to appeal to the Minnesota Supreme Court.

"It is pretty much of a long shot with that few ballots being put in play," Ginsberg said, comparing the Republican's odds of winning the trial to someone betting on the winning team in the NCAA basketball tournament. "We are disappointed. But we feel the court is wrong and we will appeal."

The ruling is not a final order and it's not clear for which candidate the ballots were cast. About half of them came from Hennepin, Ramsey and St. Louis Counties, which went heavily for Franken in the election. But about 61 percent of the 400 ballots are from Republican-leaning suburbs of Hennepin County or counties that broke for Coleman.

The three-judge panel ordered the ballots delivered to the Secretary of State's Office by April 6 and those deemed legal to be opened and counted April 7 in the Supreme Court room at the Minnesota Judicial Center.

The judges emphasized that fewer than the 400 absentee ballots might be counted if some of them are deemed ineligible upon further examination. "To be clear, not every absentee ballot identified in this order will ultimately be opened and counted," the panel wrote.

Some of the ballots lacked documentation needed for the panel to make an immediate finding.

That raised the possibility that the pool of new ballots available to Coleman could shrink further. Moreover, about 50 of the 400 have previously been identified as coming from Franken supporters who took part in a separate legal action.

To be sure, the panel has yet to rule on other claims by Coleman that could provide him with additional votes. His lawyers said missing ballots in Minneapolis wrongly netted Franken 44 votes, and that double-counting elsewhere in the city gave the DFLer scores of additional votes.

But absentee ballots rejected during and after the November election emerged early in the trial as the centerpiece of Coleman's court challenge to Franken's slim lead.

Strict standards

Coleman said as many as 4,800 absentee ballots were wrongly rejected and should be counted. But the judges quickly signaled that they were not persuaded by the argument. In a critical ruling on Feb. 13, they refused to consider many of those ballots.

That ruling changed the tenor of the trial. At its conclusion, Coleman submitted only 1,369 new ballots for the judges to consider. His legal team shifted gears, attacking the judges' reasoning and raising constitutional arguments with an eye toward post-trial appeals.

Ginsberg said "the Friday the 13th ruling," as he repeatedly called it, created a "legal quagmire" by excluding the kinds of ballots already tallied in the earlier recount.

On Tuesday Ginsberg recalled the panel's earlier ruling and said, "Now their 'Almost April Fool's Day' order is equally wrong."

In their latest order, the judges told Coleman that he failed to meet his burden to show that rejected ballots were legally cast. "Each party knew or should have known the scope of the [panel's] review" early in the trial, the judges wrote.

The judges rejected Coleman's argument that they lighten up on enforcing the letter of the law and use "common sense" when deciding which ballots to count. Coleman said other courts had held that voters only needed to "substantially comply" with election requirements, not strictly obey the statute.

For instance, the panel noted that Coleman's lawyers "argued that a voter could not obtain an absentee ballot without first completing an absentee ballot application and that the court could presume the existence of the application."

"The court was unwilling to make this presumption," the panel said. "... A party may not rely on presumptions to prove its case."

"The Court carefully reviewed each absentee ballot on a ballot-by-ballot basis to determine whether sufficient individualized evidence had been presented that the voter complied with applicable federal and state law," the judges wrote.

They required evidence that voters were properly registered, didn't vote in another way, had a qualified witness and used their genuine signature.

10 days to file appeal

After a final order is issued by the judges, possibly next week, the losing candidate has 10 days to appeal to the Minnesota Supreme Court.

Coleman's lawyers have challenged the fairness of Minnesota's election system. They said outdated voter registration records disqualified eligible voters and local election officials applied different standards in counting ballots. In an appeal, Coleman is expected to argue that the varied practices of county election officials and contradictory rulings by the three-judge panel violated rights to equal protection under the Constitution.

The Supreme Court has said all state appeals must be exhausted before a winner can be certified. But Coleman hasn't ruled out a federal appeal, which could delay a final resolution for additional months.

Ginsberg would not comment on whether the campaign might launch a separate federal court appeal.

But Texas Sen. John Cornyn, chairman of the National Republican Senatorial Committee, has recently said a legal battle could go on for years.

Brian Walsh, a spokesman for Cornyn, issued a statement Tuesday in support of Coleman: "The NRSC has and will continue to support Norm Coleman's efforts to ensure that thousands of Minnesotans are not disenfranchised, that ballots exist before they are counted, and that every legitimate vote that was cast is counted once in Minnesta."

Jim Manley, spokesman for Senate Majority Leader Harry Reid, D-Nev., made the following statement: "Senator Reid is looking forward to the final resolution of this case by the Minnesota courts so that Al Franken can finally be seated as the new senator from Minnesota."

The panel noted that it reviewed 1,717 exhibits, heard testimony from 142 witnesses and dealt with binders of evidence that, "when stacked, equaled over 21 feet of paper copies."

pdoyle@startribune.com kduchschere@startribune.com

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