As Coleman rests his case, we recap the trial so farby Elizabeth Stawicki, Minnesota Public Radio
Attorneys for Republican Norm Coleman today rested their case in the Senate election contest. Coleman's case included more than five weeks of testimony from numerous county election officials and individual voters. The overarching theme was to get in as many previously rejected ballots as possible to erase Democrat Al Franken's 225-vote recount lead.
St. Paul, Minn. — At the beginning of the trial, Coleman's attorneys said they had three claims they wanted the three-judge panel to consider -- ballots they said officials wrongly rejected; ballots they said were double-counted; and about 130 missing ballots from a Minneapolis precinct they said should not be counted.
They also had a more general argument that lurked throughout case. They claimed counties interpreted Minnesota law and election rules differently in rejecting absentee ballots.
Coleman's team argued it was unfair for a person's vote to turn on whether their county was more lenient than another in accepting ballots with errors. And to be fair, they argued the panel should count the ballots that were rejected where another county accepted them.
But Coleman's case got off to a rough start. On the first day, Judge Denise Reilly asked about a handwritten "A" on one of the ballot copies.
Coleman's witness, attorney Gloria Sonnen, responded that Coleman campaign staffers marked up the copies and failed to remove some of their marks. In other places they erased more than their own marks.
"Some of the redactors got a little overzealous and took out more information, which is what opposing counsel from the Franken campaign has taken issue with. Some information did not get redacted out due to the time constraints," said Sonnen.
The three-judge panel took a brief recess and when it came back, Judge Kurt Marben ordered the Coleman team to subpoena the counties for the orginals.
"Because it's not apparent to the panel that the witnesses can explain all the markings that are on these proposed exhibits, and how they differ from the originals that were provided," said Marben.
That order required the Coleman camp to shift gears; it needed witnesses to testify. So Coleman lawyers began calling individual voters whose ballots were rejected, including Gerald Anderson, 75, a resident of the Como Park area of St. Paul.
"I couldn't believe this could happen in America, that they could take my vote away from me. But they did," said Anderson. "They did, and as far as I know they haven't given it back to me. Well I want it back. I'm entitled to my vote."
During the ensuing weeks, the Coleman side called numerous election officials to talk about individual ballots. Most of the officials testified that election judges did make mistakes.
One was Deputy Secretary of State Jim Gelbmann, who told the court that his office gives individual counties the same instructions on how to handle ballots, but there is room for error.
"When you're relying on 30,000 individuals to administer the election, there can be variations, and I don't think Minnesota is alone in that," Gelbmann testified.
Ramsey County election official Joe Mansky also testified that there were mistakes in counting ballots. When Gerald Anderson's rejected ballot was put before him, Mansky said Anderson signed his ballot in the wrong place.
But based on the information Mansky now had, he said the ballot should count. Under cross-examination, Mansky said mistakes did not mean officials committed fraud or double-counted.
Mansky asked the judges to put themselves in the shoes of one of his election judges four days before Election Day.
"I want you to work our counter for part of the day because we're going to have about 550 people come in and vote in person. Then I want you to do accepting and rejecting for about another 950 people whose votes came in the mail," Mansky said. "Then I want you to mail out another 550 ballots to people whose applications are still coming in. And then I want you to e-mail a few ballots to overseas so they get a shot at voting."
The case was just as complex outside the courtroom. The panel handed the Coleman camp a lifeline in a ruling that allowed them to introduce about 4,700 ballots.
Although Coleman asked for up to 12,000 ballots, 4,700 was far more than the 654 that Franken argued for. The larger the pool of potential ballots, the greater the chances that Coleman could make up the 225-vote deficit.
Judge Denise Reilly reminded attorneys that introducing ballots didn't mean the panel would count each one.
"I think we've made it clear that the parties can stipulate to whatever they want stipulate to. But the panel is going to take its own view of each of these ballots, and make sure that every legally cast and wrongfully rejected ballot is opened and counted," said Reilly.
Meanwhile, a group of 61 individual voters believed to be Franken supporters asked to intervene. Based on their affidavits and other information, the panel ruled 23 of those voters could have their rejected absentee ballots counted.
On Friday Feb. 13, the panel ruled out a dozen of 19 separate categories of rejected ballots. The trial picked up speed but Coleman's ballot universe shrunk to around 2,200 ballots.
The Coleman camp said it was undaunted, and continued to raise the issue that officials disenfranchised voters in some counties, when similar ballots were accepted in other counties.
Carver County elections manager Kendra Olson told the court that her county rejected 181 absentee ballots because the witnesses who signed the ballots weren't registered Minnesota voters.
While she testified, Scott County elections supervisor Mary Kay Kes listened. When it was her turn to take the stand, Coleman attorney Joe Friedberg wasted little time in posing that question to her.
"And so you heard the testimony that they check every witness to be sure they're a registered Minnesota voter. You heard that testimony?" asked Freidberg.
"I did," Kes responded.
"Do you do that in Scott County?"
"I do not," Kes replied. "It's not required by statute."
"Have you ever consulted with anybody about that?" Friedberg asked her.
"I've asked other counties what they do, thinking, am I missing something in the law? And I get the same answer, 'No, we don't do that,'" said Kes.
Coleman's lawyers said the difference in the way Carver and Scott counties counted absentee votes violated the Constitution's equal protection clause. They claim voters in one county had a greater chance of getting their votes counted than in another, and therefore the court should err on the side of counting those rejected votes.
The panel has not spoken directly on that claim, but in its Feb. 13 ruling, it said it found no systemic problems with Minnesota's election.
The three-judge panel's rulings were always unanimous, but it did reverse itself.
Last week, the panel struck from the record a Republican poll worker's testimony because Coleman's lawyers repeatedly failed to provide the Franken side with information requests.
The next day, the panel said the Coleman lawyers' failure was inadvertent, not in bad faith, and allowed Pamela Howell to testify. But the day after that Howell revealed there was more information Franken's lawyers didn't know about.
The Franken camp asked the panel to not only strike her testimony, but also Coleman's claim of double-counting ballots. Today, Judge Elizabeth Hayden said after much discussion, the panel would allow Howell's testimony but would sanction Coleman's lawyers.
"Due to the seriousness of the violation, it is the panel's intention to impose costs associated with the delay that has been caused by this non-disclosure," said Hayden.
It's up to the panel to decide whether the Coleman side has proven its claims, and how many of the rejected ballots should be counted.
Democrat Al Franken's attorneys begin presenting their case tomorrow and have about 800 of their own ballots to introduce. It's expected Franken's case could take two to three weeks.
- All Things Considered, 03/02/2009, 5:20 p.m.