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Senate recount: Order expected today on trial date

  • Article by: MIKE KASZUBA
  • Star Tribune
  • January 16, 2009 - 12:52 PM

A special judges panel held its first meeting with campaign lawyers today, a day after DFLer Al Franken and Republican Norm Coleman dueled over how broad Coleman's legal challenge to the U.S. Senate recount should be and how long it should take.

After the closed-door meeting in St. Paul, attorneys for both campaigns said the three-judge panel is likely to issue an order later today saying when the trial will begin and what the schedule will be.

They also said a hearing will be held Wednesday at which the panel will consider Franken's motion to dismiss Coleman's lawsuit.

One of those at this morning's meeting was Joe Friedberg, a prominent local attorney, who will join Tony Trimble and Fritz Knaak in leading the Coleman legal team.

On Thursday, Franken's campaign suggested a narrow trial schedule that would begin Jan. 26 and last 15 days, and described Coleman's proposal for a five-stage trial that would start Feb. 9 as "rather leisurely."

Franken attorney Marc Elias said the trial, by state law, has to begin no later than Jan. 26, and documents filed by the campaign asked the three-judge panel to announce a schedule as soon as today.

Coleman immediately criticized the Franken proposal. They said the Democrat was asking the panel merely to "rubber stamp" the findings of the state Canvassing Board, which last week certified results showing Franken with a 225-vote lead. "Al Franken is not a United States senator," said Coleman attorney Fritz Knaak, who called Franken's lead "artificial."

Knaak said Franken was trying to turn the trial into "Canvassing Board lite" and limit it to simply reexamining the board's work.

For his part, Elias said Coleman's proposal not to start the trial until Feb. 9 was a sign that Coleman would use the contest to try to uncover evidence that might swing more votes his way -- as opposed to offering evidence he already has that the recount was flawed.

"They have a theory, but they do not have a case," Elias said in a conference call with reporters.

"Now, with the new Senate addressing the Nation's urgent business, Coleman still is not entirely sure what his case is about, so he proposes multiple trials that would begin on February 2, 9 and 16," said a nine-page legal document filed by Franken.

Coleman has suggested that the first stage focus on rejected absentee ballots, a category that could offer an early sign of whether his lawsuit can succeed. In court documents, his campaign said it might cut the trial short if any stage did not produce a "sufficient number of votes" needed to overcome Franken's lead.

But Coleman attorney Tony Trimble downplayed the significance of that language. "No, no, it's not saying that," he said when asked whether the language indicated Coleman would continue only if he saw he was gaining enough votes.

"It's saying that we want to conquer the biggest territory first [rejected absentee ballots] and, obviously, if we do well in that, we continue to move on. ... You can read a lot of things into it."

The Coleman campaign also criticized a Franken proposal that the three-judge panel should first re-examine only the votes the Canvassing Board included in the recount and then issue an election certificate.

"The parties can then, and with somewhat less time pressure, present evidence regarding all other purported errors, illegalities, or other irregularities," the Franken campaign said in their proposed schedule.

Coleman's attorneys said that was simply another attempt by Franken to obtain an election certificate -- something Gov. Tim Pawlenty and Secretary of State Mark Ritchie declined to issue because of Coleman's pending election contest.

Franken is now asking the Minnesota Supreme Court to order Pawlenty and Ritchie to issue the certificate, which Franken would likely need in order to be seated provisionally.

Trimble said Franken's proposal ignores state law and tries to sidestep a process that needs to ensure that "all of the possible votes that can be counted are indeed counted" before a winner in the disputed race is determined.

Staff writer Kevin Duchschere contributed to this report.

Mike Kaszuba • 612-673-4388

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