Judges declare Franken winner; Coleman to appeal

Democrat Al Franken holds a press conference
Democrat Al Franken holds a press conference outside his home in Minneapolis after a three-judge panel declared him the winner in Minnesota's 2008 Senate race.
MPR Photo/Tom Scheck

The three-judge panel hearing Minnesota's U.S. Senate recount trial issued its final order in the highly-contested election contest late Monday afternoon.

In the 68-page order, Judges Elizabeth Hayden, Kurt Marben and Denise Reilly confirmed that Democrat Al Franken received the highest number of lawfully cast ballots over Republican Norm Coleman in the November 4 general election.

Attorneys and judges
Minnesota Judges Kurt Marben, left, Elizabeth Hayden center and Denise Reilly, confer with Al Franken's attorney David Lillehaug and former Senator Norm Coleman's attorneys Joe Friedberg, and Tony Trimble, right, during Minnesota's U.S. Senate vote recount trial.
AP Pool/ Richard Sennott, Star Tribune

Speaking outside his Minneapolis home Monday night, Franken said he was "honored and humbled" by the close victory.

"As these three judges have said, this was a very fair election, totally scrutinized," Franken told a crowd of reporters. "They agreed unanimously on everything, and I'm very confident that we won."

The ruling isn't expected to be the last word since Coleman's attorneys have vowed to appeal to the State Supreme Court. They have 10 days to do so.

When asked whether Coleman should forgo an appeal, Franken added: "I would call on Sen. Coleman to allow me to get to work for the people on Minnesota as soon as possible."

Coleman did not many any public comments Monday evening, but Ben Ginsberg, his legal spokesman, released a statement saying they plan to move forward with the appeal. He did not say exactly when that will happen.

"This order ignores the reality of what happened in the counties and cities on Election Day in terms of counting the votes," Ginsberg said.

The panel's order addressed two other claims that had been left pending after last week's counting of more than 350 previously rejected absentee ballots.

First, the judges said Coleman did not "prove by any preponderance of evidence that any double counting of votes occurred."

During the trial, Coleman claimed that poll workers made mistakes when making duplicate copies of damaged ballots. The error could have put both versions in the recount.

The ruling also said it would not subtract 132 votes that disappeared from a Minneapolis precinct after Election Day. Even if the court had agreed with Coleman on those ballots, it still wouldn't have given him enough votes to overcome Franken's lead.

"The court's ruling Monday is consistent with how they've ruled throughout this case, but inconsistent with the Minnesota tradition of enfranchising voters," said Ginsberg in his statement.

Ginsberg said more than 4,400 Minnesotans remain wrongly disenfranchised by the court's order.

"For these reasons, we must appeal to the Minnesota Supreme Court so that no voter is left behind," he said.

Last week, the panel counted more than 350 previously rejected absentee ballots. That counting of ballots in open court represented the first new votes added to the race since the recount ended in early January.

Norm Coleman picked up another 111 votes, while Al Franken got an additional 198 votes. Other candidates received 42, for a total of 351.

Coleman's side wanted at least 1,300 ballots opened.

Since Nov. 4, Coleman has surrendered more than 1,000 net votes to Franken -- first as local officials reconciled their election night tabulations, then during the exhaustive hand recount where he lost the lead, and now through his court case.

Despite today's order, Minnesota won't have a second senator any time soon.

Ginsberg said his team will ask the justices to overturn the panel's mid-trial ruling, which found some ballots that were counted by the State Canvassing Board were illegal. Ginsberg contends that would open up at least another 4,000 ballots for consideration.

Throughout the trial, Coleman attorneys argued that some counties allowed ballots of voters who substantially complied with the law, while others held voters to a tougher standard.

The court required absolute compliance, which Ginsberg said led to unequal treatment of ballots in violation of the constitution.

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