Ballots that Norm Coleman wants to count took a beating in testimony on Tuesday, while ballots he thinks are illegal were protected by the judges hearing the U.S. Senate trial.
In the latest in a series of setbacks for Coleman, the three-judge panel refused to preserve identifying marks on counted absentee ballots that he claims have been rendered illegal by recent rulings of the court.
The decision hampers the ability of Coleman, a Republican, to challenge ballots tallied in the final phase of the recount, when DFL Al Franken took a 225-vote lead.
In rebuffing Coleman, the panel noted that he and Franken had agreed three weeks ago to allow the secretary of state to redact information identifying 933 absentee ballots approved by the state Canvassing Board on Jan. 5. Both campaigns had accepted those ballots, but Coleman last week said about 100 are invalid under the panel's recent rulings.
The judges said the secretary of state had already begun the process of redacting the information, using a black marker to obliterate identifying numbers. Deputy Secretary of State Jim Gelbmann said about half were redacted before he halted the process Friday when Coleman sought a temporary injunction.
Coleman argued that he would be irreparably harmed without the injunction because the panel would be unable to determine which ballot was illegally cast without the identifying marks.
"The court does not accept this argument," the panel wrote. It cited, in part, "the fundamental right to secrecy of a voter's ballot"
But the panel added that its refusal to grant an injunction shouldn't be seen as its opinion on Coleman's larger argument that varying practices and policies in counting or rejecting absentee ballots pose an equal protection violation under the U.S. Constitution.
A shrinking pool of ballots
A central part of Coleman's effort to overtake Franken has been to add to the total absentee ballots that he says were improperly rejected.
Ever since the judges eliminated 12 categories of rejected ballots in a Feb. 13 ruling, Coleman's lawyers have pressed the court to reconsider. They have argued that many ballots already counted are illegal under the Feb. 13 standard and that all ballots must be treated equally. Tuesday's decision is the latest sign that the court is not yet persuaded by that argument.
Coleman's list of rejected ballots that could still count has shrunk during the trial, but his campaign says it believes that 2,000 to 2,500 still will be accepted and counted.
Absentee ballots were also the focus Tuesday in the courtroom, where Franken's camp tried to pierce holes in Coleman's claim that some ballots were held to stricter standards than others.
Under questioning from Franken attorney David Lillehaug, state elections chief Gary Poser said four dozen absentee ballots rejected in GOP-leaning Carver County were properly tossed despite Coleman's claim to the contrary.
Poser said about the same number elsewhere in the state also were properly rejected.
Lillehaug asked about ballots that Coleman had included among those that he said should be opened and counted in the trial. County elections officials rejected them because they were witnessed by people who were not registered voters, a state requirement.
On one ballot after another, Lillehaug elicited testimony from Poser that the ballots were correctly rejected, using the statewide voter registration records system to show that many were invalid because witnesses did not become registered until after the election. On other occasions, it was simply unclear from state records whether the witnesses were registered at the time the absentee vote was cast.
State law says the absentee ballot return envelope must be signed by a witness "who is registered to vote in Minnesota or by a notary public or other individual authorized to administer oaths."
Coleman legal spokesman Ben Ginsberg said afterward that Poser's testimony created "a real mess" for the court, on top of its own Feb. 13 ruling throwing out several categories of ballots for possible counting. What Poser did, he said, was to disqualify "a significant number of votes" that the Canvassing Board included in its final recount results. You can't have it both ways, he said.
"It is our position, just to make it clear, that the votes that were good enough for the Canvassing Board are good enough for this court and should be counted," Ginsberg said.
Ginsberg said it was up to the three-judge panel to decide whether to count those ballots. He said while state law requires witnesses to be registered voters, it's not explicit on whether a registration is effective when a witness applies for it or when the state receives the application.
A cautious Coleman in D.C.
Coleman, in Washington on Tuesday, wouldn't say whether he would try to appeal an unfavorable ruling in the trial with the state Supreme Court.
"I'm not ruling it in or ruling it out; let's see what the court does and hopefully they'll do the right thing," he told Politico.
In another action Tuesday, 30 more voters asked the state Supreme Court to have their absentee ballots counted.
Their petition was filed by Minneapolis attorney Charles Nauen, who has worked on behalf of Franken's campaign and who handled the petitions of 24 other voters whose ballots were accepted earlier this month by the judges presiding over the Senate election trial.
The panel on Monday accepted another 12 votes sought by Franken. Combined with the 24 accepted earlier, they bring Franken's unofficial lead to 261.