The panel hearing Minnesota's U.S. Senate recount reversed its order from Wednesday that struck out testimony of Pamela Howell, a Minneapolis poll worker who claimed to witness errors that could have caused double-counting of votes.
The reversal is a break for Republican Norm Coleman, who is trying to overturn the results of a statewide recount that gave Democrat Al Franken a 225-vote lead.
In a midday press conference Thursday, Coleman attorney Ben Ginsberg praised the judges' decision.
"We are very pleased that Pam Howell will be testifying and that the court saw fit to let in what I think you will find some interesting and important testimony," Ginsberg said.
Howell may be called back to take the stand as early as this afternoon or Friday, Ginsberg said.
In her testimony Wednesday, Howell said she was with another election judge when duplicate ballots without proper labels were fed through the tabulators. She said she didn't realize what had happened until after the ballots had been fed through the counting machine.
"And at that point, they were mixed up with the others," said Howell, a Republican, in her testimony Wednesday. "Some where already in the ballot box. There was no way that we could see to fix it."
Howell has been the only witness so far to testify that duplicate ballots were counted on Election Day. Officials during the statewide recount decided to count original ballots because they said those were a more accurate indication of voters' intent. But in some precincts, the number of duplicates and originals didn't match, and Coleman argues some voters got two votes.
The judges had thrown out Howell's testimony Wednesday because she had given material to Coleman's attorneys that weren't given to lawyers for Franken. They said that was against civil trial rules.
But in Thursday's order, the judges said the failure by Coleman's attorneys to provide the evidence wasn't made in bad faith and Howell should be allowed the right to testify.
In other action, the three-judge panel issued a second order Thursday morning saying it will not allow emailed information from county election officials into evidence in the trial.
Attorneys for Coleman had asked the panel to allow the emails, which they have requested from elections officials asking for voter certification information for several dozen voters. Coleman attorneys had argued that doing so would minimize the burden on county officials form having to come into court to testify.
Franken attorneys had argued the court should not allow the email into evidence because it would eliminate the opportunity for cross examination.
"Sure it would speed it up," Franken attorney Kevin Hamilton argued Wednesday. "But it would do a great disservice to the truth-finding function of this court and to the public confidence in the outcome because none of those statements are subject to cross-examination."
In their written order, the court agreed with Franken attorneys, saying emailed certifications would "deprive" Franken and the court of meaningful cross-examination of county officials.
Ginsberg said the court should have considered the emails as legitimate and trustworthy sources of evidence.
"To now come out with this order that says records produced from the counties, about whether an individual voted and whether they were registered or not, is somehow unreliable is puzzling," Ginsberg said.
Meanwhile, Minneapolis' top election official, Cindy Reichert, has been on the stand all day Thursday. Attorneys from both sides are questioning Reichert about efforts to locate 133 ballots that went missing during the statewide recount. To make up for the missing ballots, the state ended up using Election Day numbers for the Minneapolis precinct. That decision kept Franken from losing 46 votes.
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