Dispatch February 2009

Minnesota Re-Re-Recount

A new twist in the Norm Coleman-Al Franken Senate race recount trial throws Franken's victory into question, and promises to extend the already seemingly endless court battle indefinitely

Every morning for the last week and half, Norm Coleman has strode into the Minnesota Supreme Court chambers just before 9 A.M. and taken a seat at the table shared by his three, and sometimes more, lawyers, attempting to regain his excruciatingly narrow Election Night victory over Al Franken. It had dissolved quickly: by the end of December, following an expensive and careful recount of 2.9 million ballots (which Coleman had fully expected would cement his narrow victory), he was down by a soon-to-be-certified 225.

On Monday, as week two of the Coleman v. Franken “election contest” got underway, Coleman was a wan and tense figure, alternating between episodes of ghoulish good cheer for the media—on the trial’s opening day he claimed to be “thrilled” to be in attendance—and obvious displays of dismay in the form of broad, pained, grimaces, eyes lowered, when conferring with his lawyers. Still, he was and is capable of gracious moments: when, on his way out of the courtroom on Monday, a reporter asked if he would mind explaining the mechanics of the trial, he gamely obliged.

The Coleman lawsuit is largely concerned with the fate of approximately 12,000 absentee ballots that local election officials rejected on Election Day. Of those ballots, election officials later determined that 1,346 may have been improperly rejected (because, say, an election judge made an incorrect call on whether a ballot signature matched a ballot application signature). The Minnesota Supreme Court then ruled that such ballots, individually, could only be included and counted by consent of the two campaigns and local election officials. Both campaigns, despite avowals that their primary interest is in the enfranchisement of voters, subsequently objected to ballots that they suspected might help their opponent and, in the end, only 933 were opened and counted.

When, to Coleman’s surprise, those 933 ballots resulted in the loss of his narrow lead over Franken, he requested that the Minnesota Supreme Court allow consideration of an additional 654 rejected absentees from Republican-leaning areas. The request was denied, but it hardly mattered: the 654 ballots almost certainly lacked enough votes to put Coleman over the top. So, at the beginning of last week’s trial, he and his legal team (led by Florida 2000 veteran Ben Ginsburg, and Joe Friedberg, a prominent Minnesota criminal attorney) set their sights on reintroducing all of the state’s roughly 12,000 rejected absentee ballots for immediate recount, whether or not they had been rejected properly.

To justify this shift, Coleman asserted that the trial “isn’t about candidates anymore, it’s about voters.” Indeed, unwitting voters, he argued, had been denied equal protection when Minnesota’s eighty-seven counties each applied their own, sometimes idiosyncratic, standards for accepting or rejecting absentee ballots. Coleman’s hope in filing the suit was that the three-judge panel would agree to spend weeks or months evaluating, and then possibly counting, all of the outstanding rejected ballots.

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Adam Minter is a freelance writer.

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