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A three-judge panel including, from left, Elizabeth Hayden of Stearns County, Kurt Marben of Pennington County and Denise Reilly of Hennepin County listened to arguments Wednesday in St. Paul on a motion by Al Franken’s campaign to dismiss the legal challenge brought by Norm Coleman.

Jim Mone, Associated Press

Senate recount trial: Coleman dealt blow, but no knockout

  • Article by: KEVIN DUCHSCHERE
  • Star Tribune
  • February 14, 2009 - 9:59 AM

Dealing a blow but not a knockout to Republican Norm Coleman's hopes, the judges in the U.S. Senate election trial on Friday tossed out most of the 19 categories of rejected absentee ballots they were considering for a second look, making it clear that they won't open and count any ballots that don't comply with state law.

On its face, the ruling looked to be a victory for DFLer Al Franken, whose lawyers had urged the judges to turn down 17 of the 19 categories and said Friday that they had very nearly done it.

"We are obviously very pleased with the court's decision ... there's a large chunk of ballots that have now been taken out of play," said Franken lawyer Marc Elias.

But Coleman's attorneys saw it differently, saying that the ruling leaves untouched about 3,500 of the 4,800 rejected absentee ballots they want the court to open and count, enough to make it possible for Coleman to overcome Franken's 225-vote certified recount lead.

Coleman lawyer Fritz Knaak said that those remaining votes -- along with the ballots of registered voters who were thought to be nonregistered as well as the ballots of voters whose signatures looked mismatched but weren't -- will eventually result in Coleman's return to the Senate.

The order "has a very limited impact," Knaak said. "We're disappointed that all 4,800 won't be counted, but we're very pleased that the 3,500 that do remain are still there."

A 'streamlined' trial

The judges wrote that they believe the trial may be "streamlined" by ruling out whole categories of ballots not permitted by the law, "narrow[ing] the scope and focus of this contest. The parties, the court and the public are not served by needlessly delaying the proceedings in this election contest through the presentation of evidence regarding ballots that, as a matter of law, should not be opened and counted."

But although many ballots have been removed by the ruling, it may also have the effect of lengthening the trial. The order states that Coleman must show that the ballots he wants counted were legally cast, not just that they shouldn't have been rejected. Displaying absentee ballot envelopes with obvious problems won't be enough, the judges wrote.

"There may be fewer ballots to look at, but proving them up may take longer," said Coleman attorney Ben Ginsberg.

Rules are rules

Knaak said that the figure of 3,500 remaining ballots was only a rough estimate, and Elias said it was too early to speculate on just how many ballots the judges' order left to be possibly counted.

But Elias also suggested that the broad principles set forth in the ruling by District Judges Elizabeth Hayden, Kurt Marben and Denise Reilly may be just as important as the number of rejected ballots they set aside once and for all.

The judges wrote that they are confident that the state's absentee ballot process isn't broken. Although the possible pitfalls and flaws of absentee voting have been on display for nearly three months during the recount and now the election trial, the judges pointed out that the 4,800 rejected ballots still at issue are less than 2 percent of the absentee ballots cast in November's Senate election.

Evidence in the trial suggests that many of those whose ballots were rejected may well have voted either in person or with a second absentee ballot, they wrote.

And the judges made it plain that they won't cut the campaigns any slack on the state's rules for absentee voting.

"It is not for this court to ignore the unambiguous requirements imposed upon voters attempting to cast an absentee ballot in Minnesota," they wrote.

Ballots cast by unregistered voters, no matter what the reason -- incomplete registration form, a mistake made by an election official, a missing signature on the application or the return envelope -- won't be counted.

Just because an address sticker covers a signature line doesn't excuse the voter from signing the return envelope.

Even military personnel serving overseas don't get a break, the court said: Service members must meet the statutory deadline of getting their absentee ballots to the county by Election Day or having them tossed out.

The reasons for the rules are simple, the judges wrote. Strict voting laws are intended to prevent fraud; information is needed so that citizens prove they are old enough to vote, cast their ballots where they actually live and don't vote more than once per election.

Election Day preferred

The judges added that state lawmakers clearly prefer citizens to vote in person on Election Day. The proof is that they've made it relatively easy to register, even on Election Day itself, and harder to cast an absentee vote, which the state considers a privilege to be extended only to those unable to get to the polls.

Ginsberg said that the rejected categories that will hurt Coleman the most are the "sticker obstruction" ballots, of which he said they had 175, and the late military ballots, which numbered 35.

But there are big categories of rejected absentee ballots still in the picture, he said: those with apparently mismatched signatures, rejected ballots that are marked as accepted, registered witnesses thought to have been unregistered.

In the end, he predicted, the court will count between 2,000 and 2,500 rejected absentee ballots.

The court order came at the end of a half-day in the trial, during which Plymouth City Clerk Sandra Engdahl was questioned by lawyers from both sides mainly about absentee ballot signature requirements.

Testimony will resume Monday afternoon.

Kevin Duchschere • 651-292-0164

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