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Republican Norm Coleman left the courtroom on Friday at the conclusion of closing arguments in his contest of the U.S. Senate election.

Jim Gehrz, Star Tribune

U.S. SENATE RECOUNT TRIAL DAY 35

• The evidence phase of the seven-week trial came to a end with closing arguments from both sides. The three-judge panel hearing Republican Norm Coleman's challenge to Democrat Al Franken's 225-vote lead could issue its findings as early as next week.

• Franken attorney Kevin Hamilton told the court that the Coleman's side failure to prove its case was "breathtaking." He emphasized that the judges have required specific proof that each rejected absentee ballot submitted for counting was legally cast and said Coleman's lawyers haven't done that.

• Coleman lawyer Joe Friedberg countered that the Coleman team has proven more than enough under the "preponderance of evidence" standard in a civil case, meaning that something is more likely than not to be true. He also reiterated the Coleman team's view that so many ballots already counted are illegal under the trial court's interpretation of state law that the election cannot be settled.

Up next: Nothing but the waiting for the court to make its decision.

Senate recount trial: Now it's up to the judges

  • Article by: PAT DOYLE and
  • KEVIN DUCHSCHERE
  • March 14, 2009 - 7:32 AM

After seven long weeks, Minnesota's U.S. Senate election trial came down to a debate Friday between following the rules and a notion of common sense.

Now the choice is up to the judges, whose decision will be critical -- if not final -- in eventually naming Minnesota's new U.S. senator.

During closing arguments, Republican Norm Coleman and his lawyers urged the judges to bend their rules, which have hampered his case, and rely more on "common sense" in deciding which disputed ballots deserve to be counted.

But lawyers for DFLer Al Franken said Coleman failed to meet requirements to prove that election problems deprived him of enough valid ballots to have tipped the balance.

"The law requires proof that an error did, in fact, change the outcome," Franken lawyer Kevin Hamilton told the three-judge panel. "That is exactly what is missing from the record."

Defending a 225-vote Franken lead, Hamilton argued that very few ballots were wrongly rejected and that the Minnesota election system was "a model for the nation. Minnesota's electoral system works, and it works well."

But Coleman lawyer Joe Friedberg said enough problems occurred to render the election inconclusive. The biggest problem involved similar absentee ballots that were accepted in some counties but rejected elsewhere on Election Day or later deemed invalid by the judges.

"There were rules on Election Day and they are ... different from the rules you're applying because you're looking at the statute and on Election Day many counties didn't," Friedberg told the judges, asserting their standards for validating ballots are too stringent.

Coleman attended the arguments, sitting with his attorneys during the two-hour hearing and endorsing their approach in a brief meeting with reporters afterward. Criticizing what he called "hyper-technical restrictions" on absentee ballots, Coleman said Friedberg did a good job "talking about common sense."

Asked if he'd appeal any loss, Coleman said, "Let's deal with this step right now."

Standards disputed

The three-judge panel may not get down to deliberating until after final documents are filed next week. There was no indication when it would rule.

During the arguments, Franken's lawyers divulged for the first time that they want 252 additional ballots counted. Hamilton said the 252 -- mostly absentee ballots -- complied with the judges' rulings and state law. He said absentee voters and their witnesses were registered, provided names, addresses and signatures on ballot applications and return envelopes, and didn't vote again on Election Day.

The Franken team said that the law and those rulings, not Coleman's plea for common sense, were the issue.

Hamilton argued that only six of the 1,360 absentee ballots Coleman wants counted met the same standards as Franken's 252. The others, he said, lack documentation verifying they complied with the law.

A spreadsheet of the Coleman list "is an admission of how little they have proven over the course of this trial," Hamilton said. "They've failed to offer specific evidence."

Friedberg later acknowledged that most of the 252 Franken cited deserve to be counted under the judge's rulings. "We congratulate them for their dedication to precision," he said. "But that standard exists nowhere else."

He minced no words in criticizing the panel's rulings.

"I submit that you're wrong," he said, as they looked on impassively. "Where is it written that we must prove compliance with that statute to a certainty? That's what you have apparently demanded of us."

Friedberg said Coleman can meet his burden of proving that his ballots are likely valid because they should be presumed so. He said 96 percent of absentee ballot witnesses, when checked out, turned out to be properly registered. And he said it shouldn't be necessary to document an application because voters can't get absentee ballots without filling one out.

"All of these presumptions are logical, they're common sense," he said. Hamilton countered, "The failure of proof is simply breath-taking."

Appeal possible

Under the panel's strict rules, Friedberg said, "there are several thousand votes that you have called illegal that are already in the count," and added that standards for counting varied from county to county.

The Coleman campaign has repeatedly cited such inconsistencies to argue that the election may have violated due process and the equal protection clause of the U.S. Constitution, which could become a basis for appeals.

Besides absentee ballots, the Coleman team has argued that ballots were counted twice in Minneapolis, costing Coleman 61 votes, and that 132 missing ballots in the city wrongly netted Franken 44 votes.

Hamilton said the state attorney general advised using the machine count when the missing ballots didn't turn up.

"There has been no competent evidence at all of double-counting," he said. "Those kinds of discrepancies occur in every election."

Franken hasn't attended the trial and wasn't present Friday.

His official 225-vote lead effectively swelled to 272 as a result of 47 ballots from supporters that the panel accepted after they filed a separate legal action.

pdoyle@startribune.com • 651-222-1210 kduchschere@startribune.com • 651-292-0164

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