Recount trial continues, one ballot at a time

Kevin Corbid is sworn in before testifying
Washington County Director of Property Records and Taxpayer Services Kevin Corbid is sworn in before testifying in the U.S. Senate recount trial at Minnesota Judicial Center in St. Paul, Minn., on Tuesday, February 3, 2009.
AP Pool-Pioneer Press/Ben Garvin

Attorneys for Republican Norm Coleman resumed questioning of Kevin Corbid, director of property records and taxpayer services in Washington County, Wednesday morning.

In his examination, Coleman attorney Joe Friedberg is arguing for the admission of about 4,800 absentee ballots that may have been improperly rejected. Corbid oversees election administration for the Washington County.

Throughout the morning, Friedberg went ballot by ballot with Corbid, deciding which of those no longer need to be considered. The ballots Friedberg withdraws will be subtracted from the approximately 4,800 ballots, according to Ben Ginsberg, another Coleman attorney.

Earlier Wednesday, Judge Denise Reilly made it clear the three-judge panel would count every wrongly rejected, but legally qualified ballots.

Judges Hayden, left, Marben, and Reilly
Judges Elizabeth Hayden, left, Kurt Marben, and Denise Reilly listen to testimony in the U.S. Senate recount trial at Minnesota Judicial Center in St. Paul, Minn., on Tuesday, February 3, 2009.
Ap Pool-Pioneer Press/Ben Garvin

"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," Reilly said.

When the Coleman campaign filed its papers with the court to contest the senate election, it asked the court to consider about 650 absentee ballots. Most recently, Coleman attorneys wanted to expand that number to 11,000.

The absentee ballots the judges ruled that the Coleman camp may introduce include:

  • Those where voters complied with the state election laws and filled out their ballots correctly, but were rejected anyway.

  • Those ballots where voters wrongly completed a ballot through no fault of their own. An example of this is where an election official sends a ballot to a voter for the wrong precinct.

The court also limited Coleman to considering only those ballots raised no later than Jan. 23. That was the Friday before the trial started on Jan. 26.


At a midday news conference Wednesday, Ginsberg said he didn't want to speculate on how long the entire process might take.

"I just can't guess at that," Ginsberg said. "As long as it takes to get it right."

Franken lawyers had asked the three judges to limit the reconsideration to 650 ballots, saying that's what the Coleman side argued when it filed its election contest. Under court rules, when a person files a case such as this, they must set out their claims in their court papers. That's to give the other side notice of what the suit is about so that side can start working on its response to those claims.

The panel said that while the Coleman camp could have been clearer in how it filed its election contest to eliminate any confusion over the 650, the Franken camp had been put on notice that the Coleman camp wanted more ballots considered. It said Coleman's filing contained exhibits that included "ballots that were marked accepted but were in fact rejected...ballots with obvious election judge error on the face of the ballot, and ballots that were delivered to the wrong precinct."

One of Franken's attorneys, Marc Elias, said although they argued for 650, the ruling makes it easier to move on because one of their frustrations has been trying to determine how big Coleman's ballot universe is.

Joe Manksy testifies
Ramsey County Election's Director Joe Mansky held up copies of ballots to explain himslef as John Rock, of Coleman's legal team, asked questions during the hearing of Coleman's election lawsuit at the Minnesota Judicial Center.
AP Pool-Star Tribune/Elizabeth Flores

"What does this breadbox look like? Is it a really big breadbox? Is it a smaller breadbox?" Elias said. "That will give us an opportunity to prepare for the witnesses that come in and deal with the ballots they put forward. It will also help us when we decide what our ballot universe is going forward during our case when we get to that."

Franken's legal team has said it has more ballots it wants the court to consider but won't make that argument until Coleman finishes his case.

Guy Charles, who's a visiting election law professor at Duke University, said the ruling is good for Coleman and keeps his case alive.

"Because the more possibilities they have to get votes overturned at 225-vote margin, the better off they're going to be," Charles said. "And 4,800 is definitely presents that possibility and 650 would've made it extremely difficult."

Charles said it is possible that even in considering these 4,800 ballots, Franken's margin may stay the same. But he said Coleman attorneys now have a little more room to argue that previously rejected votes for Coleman can now be counted.