Thousands of ballots are at play in U.S. Senate lawsuit

ST. PAUL -- Minnesota's historic U.S. Senate election trial, to start Monday, in some ways may resemble popular television courtroom dramas. "This is going to be very much what you expect a trial to be based on watching 'L.A. Law' or 'Law and Ord...

ST. PAUL -- Minnesota's historic U.S. Senate election trial, to start Monday, in some ways may resemble popular television courtroom dramas.

"This is going to be very much what you expect a trial to be based on watching 'L.A. Law' or 'Law and Order,'" said Marc Elias, an attorney for Al Franken.

The Franken and Norm Coleman campaigns will give opening and closing statements, exhibits will be offered and three judges will decide the case and, possibly, Minnesota's next U.S. senator.

But the election trial, which could include examinations of thousands of ballots and testimony from dozens of witnesses, may not make for riveting TV.

"You could probably listen to the first 10 minutes and then leave for three or four days and not miss anything that was exciting," said Coleman attorney Joe Friedberg, whose client wants at least 11,000 ballots considered in the trial.


The trial begins at 1 p.m. Monday, when each campaign will give opening statements. The court will meet from 9 a.m. to 4:30 p.m. each weekday.

"Obviously there's some urgency to this matter and we want to reach a resolution as soon as possible," said Judge Elizabeth Hayden of Stearns County, one of three judges overseeing the case. Kurt Marben of Pennington County and Denise Reilly of Hennepin County fill out the panel.

By law, Coleman was allowed to file an "election contest" following the statewide recount, which showed Democrat Franken won the election by 225 votes.

Coleman led after the Nov. 4 election, but his lead disappeared during the recount.

Campaign attorneys refuse to predict how long the trial will last, but it likely could take weeks based on the issues that could be raised.

Coleman, a Republican seeking a second Senate term, says counties applied different standards when rejecting absentee ballots, that some votes were double counted and that other votes included in the count were inexplicably lost or found during the recount.

The brunt of the case involves absentee ballots. An estimated 12,000 absentee ballots were rejected during the election. Through a process ordered by the Minnesota Supreme Court, 933 of them were determined to be improperly rejected and included in the recount.

Coleman's campaign said Friday it wants the judges to review and consider counting all of the remaining rejected absentee ballots -- around 11,000 -- during the trial.


Sixty-four Franken supporters who claim their absentee ballots were improperly rejected had filed a lawsuit, which the Supreme Court ordered to be part of the Coleman case. Coleman is trying to expand that filing to include all rejected absentee ballots.

"We feel it only fair that all should be considered for counting and, hence, this is one very valid effort to ensure that result," Coleman attorney Tony Trimble said. He predicted "thousands" of the rejected absentee ballots were wrongly discarded and should be counted.

Earlier, the campaign argued that the court should consider counting at least 4,500 of the rejected absentee ballots that it had divided into 37 categories, based on how the ballots were handled.

"The reverse class action lawsuit is a measure of how desperate former Sen. Coleman's legal strategy has become," Elias said.

The trial begins without an inspection of ballots in 86 precincts around the state where Coleman said there were vote irregularities. The court rejected that request Friday.

The campaigns have not released their witness lists, but plan to call county election officials and others. Friedberg said it is unlikely that voters would be called to testify, but neither campaign has ruled that out.

Unlike "Law and Order," in which cases neatly conclude within an hour, the election trial could be long and tedious, said David Schultz, a Hamline University professor specializing in election law.

"I think most of us are not going to find it overly exciting in terms of watching it, and for a lot of people they might get actually a little upset by the fact that on one level the outcome of the U.S. Senate race might hinge on a variety of motions and a variety of very, very arcane legal procedure," Schultz said.

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