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Republican Norm Coleman, center rear, meets with his attorneys, from left Tony Trimble, Joe Friedberg and Matt Haapoja during a break in Minnesota's U.S. Senate vote recount trial in St. Paul, Minn., Wednesday Feb. 25, 2009.

Chris Polydoroff, Associated Press - Ap

Senate recount trial dustup du jour: Testimony disallowed

  • Article by: KEVIN DUCHSCHERE
  • Star Tribune
  • February 25, 2009 - 11:00 PM

It wasn't just Norm Coleman's list of ballots that was shrinking Wednesday. It was also his witness list.

Pamela Howell, a Republican election judge in Minneapolis who Coleman had hoped would bolster his case that some votes were counted twice, had her testimony stricken after judges learned that Coleman's lawyers hadn't shared her written statement with Al Franken's legal team.

The dustup surrounding Howell was one of a number of events that resulted in a stutter-step day of testimony Wednesday in the Senate election trial:

• Lawyers for both sides argued about what evidence to allow;

• Minneapolis' election chief began testifying on the now-infamous 133 ballots missing from a Dinkytown precinct.

• And the day ended with Coleman's lawyers displaying copies of 311 absentee ballots from St. Louis County that they said were counted on Election Day even though they appear to be invalid.

Coleman attorney Ben Ginsberg said that the ballots were "but the tip of an iceberg of what exists here in the state in terms of illegal votes in the current count."

Seeking more ballots

Ginsberg has been pounding the drums for several days about inconsistent standards in judging ballots. A Feb. 13 ruling by the three judges hearing the election trial, which ruled out reconsideration of several categories of rejected absentee ballots, has been a sore spot for Coleman. His campaign has been trying to get ballots added to the mix as he tries to erase Franken's 225-vote lead, and his lawyers say some ballots already counted resemble ones in the categories that the judges put off limits.

Ginsberg said he couldn't believe the message of inconsistent standards wasn't getting through to the judges.

"The question for any court is whether you want to deal with it and how you want to deal with it," he said.

But Ginsberg declined to say what the court should do about the St. Louis County ballots, beyond reiterating that the judges should revise their Feb. 13 order. Coleman will present a motion Friday that seeks consistent standards in counting ballots, he said.

In the courtroom Wednesday, Howell, an election judge in Minneapolis' Ward 12 Precinct 8, was called to the stand by the Coleman team to back its contention that double-counting resulted in extra votes for Franken in Minneapolis and other DFL-leaning districts.

Her testimony centered on duplicate absentee ballots, which are copied from creased originals so they can be automatically tabulated without jamming voting machines. Howell, a table judge on Election Day, told Coleman attorney Joe Friedberg that she heard another judge say that duplicate ballots had been fed into the vote tabulator without being labeled. By the time the mistake was discovered, the ballots were already lost among the other votes, she said. The Coleman campaign has contended that some double-counting occurred during the recount when both originals and unlabeled duplicates were tallied.

Under Franken attorney David Lillehaug's aggressive cross examination, Howell said that during the recount she contacted Coleman attorney Tony Trimble about the incident. "I was frustrated," she said.

Then, in response to a question, she said she had written notes in a computer file she labeled "Testimony" and shared it with the Coleman attorneys.

Lillehaug immediately asked the judges to strike Howell's testimony, saying that the Franken team wasn't given a copy of her statement.

"We learn about it in the middle of testimony," Lillehaug fumed.

"I think the issue of prejudice is ridiculous," Friedberg responded.

Trimble told the judges that Howell's document was "a vanilla statement" that he had not intentionally hidden from the Franken team. But Judge Elizabeth Hayden dismissed Howell and ordered her testimony removed from the record.

Afterward, Ginsberg said the move wouldn't hurt the Coleman case and that the campaign had other witnesses who could speak to double counting.

Minneapolis elections director Cindy Reichert followed Howell on the stand. Reichert was asked about efforts to locate about 130 ballots declared missing during the recount. The ballots could not be found and the state went with Election Night numbers for the precinct. That decision kept Franken from losing 46 net votes. Reichert will resume her testimony today.

Staff writer Pat Doyle contributed to this story. Kevin Duchschere • 651-292-1064

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