Recount case in the hands of the judges

Kevin Hamilton
Al Franken attorney Kevin Hamilton looks over an exhibit with a witness during the Senate recount trial in St. Paul, Minn.
AP Photo/Jim Mone, pool

After seven weeks of trial that included nearly 2,200 exhibits, 134 witnesses including 38 election officials, the question of whether Franken or Coleman received the most legally-cast votes is now up to the three-judge panel.

Each attorney had only one hour to sum up their side of the case beginning with Franken attorney Kevin Hamilton. Hamilton said Coleman's lawyers failure to prove their case was "simply breathtaking."

Norm Coleman's lawyer Joe Friedberg
Norm Coleman's lawyer Joe Friedberg.
AP Pool-Pioneer Press/Ben Garvin

Hamilton referred to a summary of rejected absentee ballots Coleman wanted the court to count. Hamilton said the Coleman side failed to prove the ballots were valid under Minnesota law.

"In no instance have they been able to prove that the voter didn't otherwise vote," Hamilton told the court. "In no instance, not one on the page have they proved that the witness was registered; and in almost all cases they failed to prove the voter was registered."

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Coleman's goal was to get the panel to consider as many unopened ballots, largely from Republican-leaning counties, as possible in hopes of surpassing Franken's 225-vote lead. The biggest pile were cast as absentee ballots that for myriad reasons had been earlier rejected. Hamilton said in the end, Coleman is woefully short.

"If you sort through their data, which we've done, to help the court analyze it, there are a grand total of six ballots as to which there is competent before the court, meeting all the requirements to show the ballots were lawfully cast," Hamilton said. "That's it."

Hamilton said that, while Coleman has proven that at most six of their ballots should be opened and counted, Franken's lawyers have proven that at least 250 of their ballots should be opened and counted.

"Their failure of proof is simply breathtaking."

The Franken side has maintained throughout the trial that any mistakes by election judges were simply human error and that no election is perfect. Hamilton said the idea that after seven weeks of trial, the few hundred ballots were wrongly rejected amount to only one-tenth of 1 percent of the nearly 3 million votes cast.

When it came time for Coleman's attorney, Joe Friedberg, to present his closing arguments, he didn't dispute that Coleman lawyers didn't prove all the elements the panel required for legal ballots.

Friedberg said the panel got the standard wrong. He said the law in the election contest did not require that they prove every element to an absolute certainty, only that voters substantially complied with the law.

"Where is it written that we must prove compliance to that statute with a certainty? That's what you have apparently demanded of us," Friedberg said. "With all due respect, that holding was created out of whole cloth and it just 'growed like Topsy.'"

Friedberg said Coleman's legal team had the burden to prove only that it was more likely than not that a ballot was valid. And he said that's the standard that the panel should use in viewing Coleman's 1,360 introduced ballots. Moreover, he said the court should presume that Minnesotans follow the law. He said the court should use common sense and logic.

Friedberg also asserted some ballots were counted twice, that there were missing ballots in some precincts and that the secretary of state's voter registration system was unreliable because it still wasn't up to date.

But he spent half his time on what he called the changing rules after the game was played, raising the potential of a constitutional problem to raise on appeal. Friedberg said the panel changed the vote counting rules in mid-February when it ruled some ballots illegal that the state canvassing board had already counted.

"There were rules on election day and they are desperately different from the rules that you're applying because you're looking at the statute, and on election day, many counties didn't," he said.

The panel must now sort through the evidence that Kevin Hamilton said piled up like snowdrifts in the courtroom, and determine which candidate had the most legally-cast ballots. The judges didn't say when they'd reach a decision.

The contest's loser can appeal to Minnesota's Supreme Court or try to file a claim in federal court. The state Supreme Court said earlier that Minnesota can't seat a candidate for the U.S. Senate until appeals in state court have been completed.