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Making sense of the Coleman-Franken recount trial

  • Star Tribune
  • February 2, 2009 - 12:13 PM

The court case underway in the Senate race was brought by Republican Norm Coleman after the state Canvassing Board certified recount results showing DFLer Al Franken ahead by 225 votes. Coleman claims that when irregularities and errors are corrected, he will emerge the winner.

NORM COLEMAN CHALLENGE

Coleman must prove with what's called a preponderance of the evidence -- meaning more likely than not -- that errors during the voting and during the recount skewed the results.

AL FRANKEN STRATEGY

If the court case leaves the recount total unchanged, Franken is elected. A central line of the argument by Franken's lawyers is that Coleman's claims are too vague and theoretical to meet his burden under the law, and that some of the vote-counting procedures he is challenging now are ones he had agreed to earlier.

Twin Cities trial lawyer Joe Friedberg is best known for his work as a criminal defense attorney. Ben Ginsberg played a central role in the 2000 Florida recount in behalf of President Bush.

Marc Elias was counsel to John Kerry's 2004 presidential campaign. David Lillehaug is a former U.S. attorney for Minnesota.

THE JUDGES

Pennington County District Judge Kurt Marben, of Thief River Falls, was made a judge in 2000 by Independence Party Gov. Jesse Ventura.

Hennepin County District Judge Denise Reilly became a judge in 1997, appointed by Republican Gov. Arne Carlson.

Stearns County District Judge Elizabeth Hayden, appointed to the bench in 1986 by DFL Gov. Rudy Perpich, was the first female judge in central Minnesota's Seventh Judicial District.

THE ISSUES

ABSENTEE BALLOTS

Coleman contends that many rejected absentee ballots should be reconsidered because they are comparable to ballots that were judged improperly rejected and counted during the recount. Coleman says that because some rejected ballots were reexamined, all must now be reviewed under the same standard. He cites the constitutional guarantee of "equal protection" to support this claim. He also says his earlier opposition to considering rejected absentee ballots during the recount was due to his belief that an election contest, the proceeding now underway, was the proper forum to do so.

Franken argues that: 1) rejected absentee ballots have been reviewed by competent officials and most were properly rejected, 2) Coleman's position now contradicts his earlier stance, and 3) at most Coleman should be allowed to review only the 654 ballots he identified as improperly rejected during the final stages of the recount, not the thousands of ballots he now says should be reconsidered.

DOUBLE-COUNTING?

Coleman argues that some votes were double-counted. When ballots can't be fed into counting machines on election day, officials make matching duplicates and put those in the machine; officials are supposed to mark each original and its duplicate. In some precincts there are ballots identified as originals (that is, filled out by voters) but no ballots marked as their duplicates. During the recount, the campaigns agreed to count originals and not duplicates. Coleman believes this means that some unmarked duplicates exist among the rest of the ballots, so when originals lacking matching duplicates were recounted, officials were counting some votes twice (the original and the unmarked duplicate).

Franken argues that there are other, more likely, explanations for situations where original and duplicate ballots don't match. For example, some voters may have failed to sign in on election day, resulting in a mismatch of the number of voters and the number of ballots. He also notes that the Coleman campaign proposed the counting of original ballots in the recount. Franken warns that any attempt to remedy theoretical double-counting could result in failing to count some votes at all.

LOST AND FOUND

Coleman complains that in some places, ballots never counted on election day were discovered during the recount -- and counted - while in at least one precinct, ballots apparently counted on election day were lost. Recount officials chose to use the election day results in that case. Coleman argues that these inconsistencies and irregularities should be corrected.

Franken argues that election officials properly investigated missing and found ballots and in each case took the action best designed to accurately reflect the votes cast.

WHERE DO WE GO FROM HERE?

Either party could appeal the judges' rulings to higher state courts or, on constitutional grounds, to the federal courts.

The Senate has broad authority over seating its members. It could even declare the seat vacant and force a new election.

THE LAWYERS

Weeks may pass before the court case ends and the judges issue their rulings. But that might not be the end of the story:

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