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.

Meanwhile, Franken’s lawyers, (led by Marc Elias, former general counsel to John Kerry’s 2004 Presidential Campaign), have appeared somewhat cocky. They have devoted much of their energy to dismissing Coleman’s voter’s rights approach as phony and opportunistic – merely the last-ditch ploy of a campaign that has exhausted all its other options, and they have asked that the court hold its opponents, and the trial, to the originally requested 654 ballots. During the two days that I spent in the courtroom, I watched as they spent significant amounts of their billable courtroom hours distracted by their laptops—perusing email, browsing online newspapers, and – in the case of co-counsel and former U.S. Attorney David Lillehaug – following live-blog commentary about the trial, hosted by the left-leaning site theuptake.org (all unbeknownst to the three judge panel sitting across from them). In their lack of concern, they were perhaps taking their cue from their ostentatiously blasé client, who had so far not bothered to show up at the courthouse. In fact, on Friday morning, as St. Paul woke up to minus-eight-degree temperatures, it was reported that Franken had skipped town altogether in favor of a week in Key West.

That complacency may have been ill-advised. On Tuesday afternoon, in a long-awaited, but dramatic turn, the panel of judges ruled that nearly 5,000 rejected absentee ballots that had been discounted through no fault of the voter (but rather through the fault of, say, an election judge or a municipal clerk) could be introduced as evidence. The judges gave no guidance as to how they—or anyone else—would judge this massive influx of evidence, and it has not yet been decided whether these additional votes will end up being counted. But if the Coleman campaign’s previous claim that “every ballot tells a story” is taken seriously, it’s likely that some subset of the 5,000 actual voters will be asked to testify in defense of their ballots.

When Franken returns from Florida, then, it will be to the coldest Minnesota winter in years and a significantly changed outlook. Most likely only a fraction of the 5,000 votes will end up being counted, and many observers believe that so few of those 5,000 votes will prove eligible under the imposed conditions conditions that Franken will still emerge the winner. But, at a minimum, as of Tuesday afternoon, Franken’s victory is less assured. What does seem assured—given that the judges have yet to rule on just how they will test the eligibility of those 5,000 voters—is that this tedious trial, which has already tested the state’s patience (on Monday, more than one onlooker likened the proceedings to the endless repetitions of the film Groundhog Day) will last well into the spring thaw.