Coleman, Franken clash over absentee considerations

The three-judge panel listens to the attorneys
Judges Elizabeth Hayden, center, and Kurt Marben, back left, listen as lawyers for Franken and Coleman approach the bench during 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

Over the past several weeks, the pace of the election contest has moved agonizingly slow. Coleman's attorneys introduced ballots one at a time in order to get them into evidence, and ultimately a shot at getting the panel to count them.

That's important because the State Canvassing Board decided that Franken had received 225 votes than Coleman. The Coleman side wants the panel to consider more absentee ballots in hopes that there will be enough votes for Coleman to erase Franken's lead.

Norm Coleman listens in court
Norm Coleman listened as his attorney Joe Friedberg, cross-examined Anoka County Elections Manager Rachel Smith during the Senate recount trial at the Minnesota Judicial Center.
AP Pool-Star Tribune/Elizabet Flores

But because of the tedious pace, the three judges asked the two camps to weigh in on whether the panel should consider 19 separate categories of rejected ballot in hopes of narrowing the field. That field of ballots is now about 4,700 for Coleman and another 800 for Franken.

During Thursday's arguments, Coleman attorney James Langdon asked the court to take a liberal, with a small 'l', view on including ballots in the final tally. Langdon told the judges that they should presume that voters meant to follow the law and err on the side of counting absentee ballots.

"When they sign a certification under penalty of law, which makes them as several county officials have told us, guilty of a felony if they lie, Minnesota law is going to presume that its voters actually tell the truth," Langdon said. "Just like it's going to presume that it's election officials do the best that they can."

But Judge Denise Reilly asked Langdon about the voters' responsibility.

"Do we presume that the voter reads the instructions before signing and filling out the application?" Reilly said.

Langdon called it a reasonable presumption.

"When you're talking about enfranchising versus disenfranchising, this is a situation where substantial compliance with the statute is met by having a voter who signs it and certifies this is his genuine signature," he said. "Why would a voter take on the risk of a felony?"

The Franken camp wants the panel to take a hard line on counting additional ballots. Franken's attorney, Marc Elias, told the court the panel should not presume anything other than what the law requires and whether the ballot fulfilled those requirements.

"The contestant talks a lot about what they wish the law might be, but not a lot about what the law is," Elias said. "The law is what it is. It has strict requirements that must be adhered to and it is not the role of this court to decide to rewrite them -- that is the role of the Legislature."

But Judge Elizabeth Hayden said to Elias, that if Franken wants the panel to take a strict view of the statutory requirements for absentee voting, why did the Franken camp agree to an exception when the county sends a voter the wrong ballot.

"That being official error in the case of a non-registered voter," Hayden said. "How do you square that?"

Elias said the Franken camp understood that the panel's prior rulings that when county officials --not voters -- made mistakes, the ballots should be counted. He also said that the exception still fits with Minnesota law.

Elias said, while Minnesota's statutes are rigid on the requirements for which absentee ballots should count, the statutes are much more lenient on the front end in registering voters.

"So the case of an unregistered voter who gets a packet from a county auditor with the wrong election materials, that voter has done everything they're required to do by the elected official," Elias said. "If this panel has decided there's an official error exception, if every it would be one, it would be that."

The panel also held separate hearings on two other issues connected with the case. Coleman Attorney Joe Friedberg asked the court to consider a class action for voters in the case. Franken's attorney said doing so would disrupt the trial and that the court doesn't have authority under the statute to add the class action to the election contest trial.

The Coleman legal team also asked to have a statistician testify in the election contest. The Franken side argued against that, saying a statistician would add more time to the trial and would do nothing but confuse the issues.