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Coleman lawyers accuse judges of 'fatal inconsistency'

  • Article by: PAT DOYLE
  • Star Tribune
  • February 19, 2009 - 11:43 AM

The often-plodding trial of the U.S. Senate lawsuit erupted Wednesday.

Norm Coleman's lawyers reacted to a pair of adverse rulings by accusing the judges hearing the suit of creating "a legal quagmire" and a "fatal inconsistency" by refusing to consider some rejected absentee ballots that resemble others that have already been counted.

The rising tensions in the trial, now in its fourth week, came after the three-judge panel earlier Wednesday denied a Coleman request to reconsider a decision it made last week. That ruling excluded a dozen categories of rejected absentee ballots and reduced the number of votes Coleman, a Republican, might be able to get counted as he tries to overtake Democrat Al Franken's 225-vote lead.

"It's kind of like criticizing the official ... during the middle of a game," said Guy-Uriel Charles, a professor of constitutional law at Duke University. "Lawyers rarely criticize judges, and even less frequently criticize judges before whom they are trying a case."

The Coleman campaign says the judges Friday declared as illegal certain categories of absentee ballots that resemble ballots that were accepted during the recount or later by the three-judge panel hearing the case. About 100 of the 933 absentee ballots initially rejected by counties but tallied during the recount's final phase would have been barred under the logic of the judges' ruling last Friday, the Coleman camp argues.

Deputy Secretary of State Jim Gelbmann said Wednesday that it would be possible to rescind those votes if a court ordered it. His office kept track of the absentee ballot return envelopes and their ballots so they could be paired in the event of a lawsuit. The secretary of state still has possession of them. Coleman lawyer Ben Ginsberg has said the campaign would prefer to count additional rejected ballots rather than nullify votes already counted, and spokesman Mark Drake said Wednesday night the campaign has no plans to revisit the 933.

Appeal possible

Inside the courtroom Wednesday, Coleman and Franken lawyers led county elections officials through sometimes painstaking detail on why they rejected or accepted absentee ballots.

But outside, the Coleman campaign intensified its criticism of the panel.

"In denying the request to ... reconsider, the court creates a real problem for itself and the reliability of these proceedings," Ginsberg said in a statement issued by the campaign. "This fatal inconsistency serves to disenfranchise some voters while allowing others with the same ballots to have their votes counted."

"The net effect ... is a legal quagmire that makes ascertaining a final legitimate result to this election even more difficult," he said. He declined to speculate on whether the campaign would appeal the ruling, and noted that Minnesota sets a relatively high bar for appealing to a higher court during the middle of a trial. "We're looking at what to do."

Franken lawyer Marc Elias said the public criticism was born of desperation.

"Their window is closing," Elias said." They're trying to build a record for appeal."

As for the Coleman campaign's assertion that variations in how counties accepted or rejected absentee ballots created unequal standards, Elias said, "They're wrong."

While it's rare for lawyers to criticize judges hearing their cases, it's not surprising given the circumstances facing Coleman, said law professor Charles.

"This has both a political purpose and a legal purpose," Charles said. "The political purpose is to try to maintain some support for the Coleman camp as it's taking on some negative legal rulings."

The legal purpose is to "send a message to the court that's involved, the Minnesota Supreme Court and perhaps the federal courts that, 'Look, there are serious problems here and if we appeal to you, you are going to have to take our case very seriously.'"

Coleman has argued that varying practices in the counting of absentee ballots in the election creates a potential violation of the equal protection clause of the U.S. Constitution.

While there is enough evidence of variation among counties to justify a court considering an equal protection claim, proving it is another matter, Charles said. "You'd have to show that this is something that happened across the state. You'd also have to show that it would affect the outcome of the election."

Showdown expected

The panel dealt yet another blow to the Coleman campaign Wednesday evening by barring it from calling a statistician to testify that the rejection rate of absentee ballots in some counties is higher than can be explained.

"It is irrelevant whether there were irregularities between counties in applying [Minnesota election laws] prior to this election contest," the panel wrote.

Coleman lawyers have elicited testimony showing that Carver County checks to make sure absentee ballots are signed by witnesses registered to vote, and rejects those ballots that aren't. Other counties don't check.

Both Elias and Ginsberg said they expect a showdown in court soon on the Coleman's equal protection claims. The panel earlier ruled that there was no evidence of systemic problems with the state's absentee voter system and expressed skepticism of Coleman's argument that different practices by county election officials amounted to an equal protection violation.

Despite the setbacks, the Coleman campaign reiterated its contention that perhaps 3,500 rejected absentee ballots should be reviewed to see if they should be opened and counted. Ginsberg expressed confidence that there are enough ballots eligible for counting for Coleman to overtake Franken. Pat Doyle • 651-222-1210

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