ST. PAUL -- Kay Mack only talked about a handful of ballots, but her testimony Tuesday illustrated the complexity of a major issue in the U.S. Senate election trial.
The Beltrami County auditor told the court that her county interpreted an absentee ballot law about voter registration differently than did other counties, but Mack also said she was confident Beltrami County properly rejected unlawful ballots.
Mack's brief testimony on the trial's 22nd day seemed to support an argument by Al Franken's team that most rejected absentee ballots were properly rejected, so should not be counted in the election trial.
Yet her testimony also supported a claim by Norm Coleman's campaign, his attorneys said, that counties' protocol varied when deciding which votes were lawfully cast.
As he challenges Franken's 225-vote victory in the recount, Coleman is arguing before a three-judge panel that about 2,000 rejected absentee ballots should be counted. That includes some that were rejected for voter registration problems.
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State law requires an absentee ballot witness to be registered to vote in Minnesota, but an issue before the court is when, technically, that witness must be registered -- is it when the witnesses signs the ballot envelope or is it Election Day?
Mack said the registration deadline used by her county actually is the date that election officials review the ballot, not Election Day nor the day the witness signed the document.
Mack said most of her county's roughly 50 remaining uncounted absentee ballots were rejected because of those witness registration problems. But she said nothing would change if she had used an earlier deadline.
"I think it would be exactly the same," she said.
Coleman attorney Ben Ginsberg said Mack's testimony contradicted the opinion of state Elections Director Gary Poser, who testified that absentee ballots should not be counted if the witnesses were not registered Minnesota voters at the time they witnessed the ballot being prepared by the voter.
"That's as stark a discrepancy as you can get," Ginsberg said. "It means some voters' votes are counted and others are not counted, even though the reasoning is exactly the same."
Ginsberg said the election tally includes votes from counties that did not check to determine whether the absentee ballot witness was registered.
Franken's campaign claims that the deadline is when witnesses sign the ballot envelope to show they saw the voter prepare it.
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"It's the law," Franken attorney Marc Elias said.
The judges may decide that.
"I think that's now an open question before the court," Ginsberg said.
Franken attorney David Lillehaug spent most of Tuesday questioning Poser about roughly 200 unopened absentee ballots Coleman wants considered for counting, but that the Democrat's campaign believes were properly rejected. The ballots were from voters around the state, including Bemidji, Blackduck and Red Wing.
Lillehaug asked about a Moorhead ballot in which records showed the witness was not registered at the time the ballot was completed.
"So this ballot was properly rejected?" Lillehaug asked.
"Yes," Poser said.
The prolonged election has come down to detailed issues such as voter registration. Mack said she was surprised that she was called to testify about a select group of ballots from her county.
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"Obviously, it's important to them if they had me come down," she said. "And that is an amazing statistical anomaly -- that an election could be that close."
Franken's campaign on Tuesday said it is challenging 61 Becker County votes that are part of the election tally because the county did not inform the campaigns they were misplaced election night and were counted for the first time during the recount.
Under questioning from Lillehaug, Poser said he would have been concerned if those votes, which were misplaced for about three days after the election, were counted without the campaigns' knowledge.
That is what happened, Lillehaug said.
"Those ballots were opened and counted without the campaigns being able to observe," he said outside the courtroom.
