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Norm Coleman's luck improved a bit Thursday, as judges in the U.S. Senate recount trial ordered an inspection of about 1,500 rejected absentee ballot envelopes and changed their minds about letting a Coleman witness testify.
The ballot inspection could lead to counting more votes, something Coleman needs, if local officials discover voter registration cards in the ballot secrecy envelopes of voters whose ballots were rejected for lack of registration. But there's no assurance how the votes would divide between the candidates.
Lawyers for Democrat Al Franken and for Coleman, a Republican, had agreed to the inspection of secrecy envelopes. Both sides said they were pleased with the order. But Coleman, trailing by 225 votes, has particularly stressed the need to inspect them for missing registrations.
While more than half of the secrecy envelopes to be inspected are from counties that Franken carried by more than 10 percentage points, most of those are from Hennepin and Ramsey, where Republican-leaning suburbs could favor Coleman. The two campaigns identified roughly the same number of secrecy envelopes to inspect.
Ginsberg said his campaign identified about 700 that involved people who were not registered to vote and who submitted ballots in counties that did not typically check secrecy envelopes to see if new registrations were inside. Franken submitted names of people "who were rejected for registration where there was a reasonable chance it was in the secrecy envelope," his campaign said.
The court reconsiders
In response to another other court order, Minneapolis election official Pamela Howell is expected to return to court today to bolster the Coleman lawyers' argument that ballots were double counted in some places, benefiting Franken.
The three-judge panel Wednesday had stricken Howell's testimony after it learned that Coleman's lawyers had failed to share her written statement with Franken's legal team as required by court rules.
But the panel said Thursday that the "failure to disclose the document was inadvertent and not in bad faith," and that Franken's lawyers would eventually have an opportunity to review it and prepare to question Howell. "The court now reconsiders its ruling," the judges said in a written order.
Howell, a Republican table judge on Election Day, told Coleman attorney Joe Friedberg in court Wednesday 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 such mistakes resulted in both originals and unlabeled duplicates being tallied during the recount.
Combative in court
In the courtroom Thursday, lawyers for both sides were somewhat more combative than has often been the case in the trial's first five weeks. Coleman attorney Joe Friedberg pressed Minneapolis election director Cindy Reichert for a yes or no answer at one point over objections from Franken lawyer David Lillehaug. In turn, Friedberg let fly a barrage of objections to Lillehaug's questions to Reichert about how voters sign in and receive their ballots. At one point Lillehaug called Friedberg's objection "inappropriate."
Reichert testified about election practices in the state's largest city and gave a blow-by-blow account of failed efforts to locate 132 ballots missing from a Dinkytown precinct. The state Canvassing Board decided to count the votes from the largely DFL area based on the election night voting machine tally.
Reichert testified that the missing ballots did exist, a claim that the Coleman team has long dismissed but that Friedberg accepted in court. Franken lawyer Marc Elias congratulated Coleman's lawyers on leaving "the Flat Earth Society," but Ginsberg said the existence of the ballots doesn't change the fact that they're not available to be counted.
In answer to questions from Lillehaug concerning alleged double counting of ballots, Reichert also said that there were various reasons why the numbers of original and duplicate ballots didn't always match.
A mystery concerning another group of ballots was partially solved Thursday. On Wednesday, Coleman lawyer Ben Ginsberg released more than 300 St. Louis County ballots to reporters, claiming they were illegal under recent rulings by the judges.
At first blush, some of them looked a little suspicious. Numerous absentee ballot return envelopes had names and street addresses printed as if they were written by the same person. None of them was signed by a voter, as required by state law, yet all were marked "accepted" by local elections officials and counted.
But St. Louis County elections director Paul Tynjala Thursday had a simple, innocent explanation for 63 of those envelopes: They were duplicates created by local elections officials to correspond with originals signed by overseas voters. Those overseas ballots, e-mailed or faxed to Minnesota, have a different format but appeared to be properly filled out, and the corresponding envelopes were a way to keep track of them, he said.
"They would have been legitimate," Tynjala said.
Ginsberg said a larger problem remains. "That still leaves 250 or so illegal votes in the count, which is still awfully significant," he said.
Twenty of those whose acceptance he challenged were witnessed by a deputy clerk in Eveleth who said she was a notary but didn't include an official seal, as required by the judges. Most cited by Ginsberg involved voters other than overseas residents who failed to sign applications or return envelopes.