Senate trial closing arguments in sight

Norm Coleman visits with his attorneys
Former Republican Sen. Norm Coleman, second from left, smiles as he visits with attorneys, from left, Tony Trimble, Joe Friedberg and Ben Ginsberg during a break in the Senate vote recount trial Thursday, March 12, 2009 in St. Paul, Minn.
AP Photo/Jim Mone, Pool

Franken's attorneys took about eight days to present their side of the case -- far shorter than Coleman's side, which took more than five weeks.

But this was Coleman's contest. He had the burden to prove that election officials wrongly rejected enough ballots to surpass Franken's 225-vote lead after the statewide recount.


Franken presented his own counterclaims -- that election officials wrongly rejected ballots that could increase his lead. His lawyers called some election officials about their policies, but most of the witnesses were individual voters such as Audrey Cohen of Edina.

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Election judges rejected Cohen's ballot because she was not a registered voter, but she told the panel she believed she had automatically registered when she changed the address on her driver's license. Cohen said it was very important that her vote get tallied.

"My father fought in the Mexican-American border war, the first round, and then on to World War I in one of the worst battles," Cohen said in court. "So I'm a very, very strong advocate for the U.S. and I want my vote to count."

Franken's attorneys contend Minnesota's election system works extremely well. And while Coleman's lawyers argued there were mistakes, Franken's lawyers argued that they were few in number and caused by human error, not fraud.

In presenting that part of the case, Franken's lawyers called Minnesota's Elections Director Gary Poser to the stand who testified that elections in Minnesota were extremely accurate, and that the state led the nation in its statewide voter database system.


But under cross-examination, Coleman's attorneys used the opportunity to argue that database wasn't up to date. Poser acknowledged that there can be a delay between the time a person registers to vote and when the state database is updated and reflects that registration.

Coleman attorney Joe Friedberg asked Poser whether local officials and the attorneys in the case might have relied on incorrect information in deciding whether a voter was registered.

"A voter lookup form from the secretary of state's office that was entered into evidence five or six weeks ago, were we to run that voter now, it could have completely different data in it, couldn't it?" asked Friedberg.

"It could," responded Poser.

But Franken's lawyers countered that there were other ways to determine whether a voter was registered -- by calling individual voters and simply asking them.

Franken's side predicted it would take between two to three weeks to argue its case. But after only a few days, Franken's lawyers asked the three-judge panel hearing the contest to dismiss the case. Coleman's lawyers called the action routine in such cases.


Franken attorney Marc Elias told the judges that his side crunched the numbers and by their calculations, Coleman could not surpass Franken's 225-vote lead.

"They have called more than 50 witnesses, they have introduced hundreds and hundreds of documents, thousands of pages. And yet despite all of those witnesses and other evidence, they rested their case without having proved little more than a handful of absentee ballots that were improperly rejected," Elias told the court.

Coleman attorney Jim Langdon told the panel that Elias' numbers were simply wrong. He said Coleman's side has presented compelling evidence that thousands of Minnesota voters have been disenfranchised, and as a matter of constitutional law and state election laws, their votes should be counted.

Langdon told the panel the Coleman side disagrees with Elias' numbers.

"We think that they have left out substantial chunks of the evidence, I'm sure inadvertently. A lot of paper has come in in this case, and a lot has come in at the very end of our case," Langdon said.

In rebuttal, Marc Elias said it's too late because Coleman's side rested its case. He said the Coleman camp could have proven that voters were registered.

"They had any number of ways to prove it, including the statewide voter registration system, including calling witnesses, including calling voters," said Elias. "They chose not to avail themselves of that, and that was a strategic decision they made during their case."

After closing arguments, the case will go to the three-judge panel to decide how many legally valid votes Republican Norm Coleman and Democrat Al Franken received.

It's likely the loser of the contest will appeal to Minnesota's Supreme Court. Last Friday, the Supreme Court ruled that a candidate could not take the seat in the Senate until the lawsuit -- and possible appeals in state court -- are complete.