Weeks of Senate trial remain

ST. PAUL -- Norm Coleman's campaign said it is close to wrapping up its case in the U.S. Senate election trial. That means this trial, nearing the end of its fifth week, is almost over, right? Not quite. Coleman's campaign has spent 23 days tryin...

Republican Norm Coleman, center, meets with his attorneys, from left Tony Trimble, Joe Friedberg and Matt Haapoja during a break in Minnesota's U.S. Senate vote recount trial Wednesday in St. Paul. Pool photo, Chris Polydoroff

ST. PAUL -- Norm Coleman's campaign said it is close to wrapping up its case in the U.S. Senate election trial.

That means this trial, nearing the end of its fifth week, is almost over, right?

Not quite.

Coleman's campaign has spent 23 days trying to convince a three-judge panel that the Senate recount results giving Democrat Al Franken a 225-vote victory were flawed and ballots remain to be counted.

Outside the courtroom Wednesday evening, Coleman's campaign used copies of 300 St. Louis County absentee ballots to argue that there were votes counted on election night but that would be illegal under a recent decision by the trial judges.


It was an attempt to illustrate an issue the Coleman campaign has tried to raise for the past week -- that the court should reconsider its ruling excluding some types of uncounted ballots from the trial -- but that the judges so far have rejected.

A few more days will be needed for the campaign to complete its case, particularly after a strange trial day Wednesday that included a delay because a witness had to catch a plane and the unusual step of judges blocking a witness from testifying.

"I don't think it's going to get done this week," Coleman attorney Ben Ginsberg said Wednesday of his team's case. He pointed to Monday as when the former Republican senator's team will wrap up.

Much of the trial has focused on whether certain absentee ballots, rejected in the Nov. 4 election, should be counted. Coleman's campaign has tried to show, through testimony from local election officials and voters from around Minnesota, there remain as many as 2,000 lawfully cast absentee ballots that should be added to the tally.

When Coleman's team wraps up its case, Franken attorneys will present their case as part of the trial. They will argue that they have their own list of absentee ballots that were wrongly rejected and should be counted.

The campaign also wants to show that ballots went missing in the election, costing Franken 64 votes. Those include votes from precincts in Moorhead, Rosemount, Cottage Grove, Oak Park Heights and Woodbury, along with Oakport Township in Clay County.

The campaign also plans to fight the inclusion of 61 Becker County votes it said should not have been counted in the recount because the ballots were mishandled by county officials.

First, though, Franken's campaign will ask the judges to dismiss portions of Coleman's case, Franken attorney Marc Elias said. That is a standard request.


Franken's team will use less time to argue its case than Coleman's has, Elias said.

"It'll be shorter," he said, suggesting two or three weeks.

Even then, the trial may not be complete.

The three district judges hearing the case -- Kurt Marben of Pennington County, Denise Reilly of Hennepin County and Elizabeth Hayden of Stearns County -- have indicated they plan to open and count some absentee ballots.

The judges have not said when that will occur, but that could require additional time as counties will have to send the sealed ballots to St. Paul for counting.

While the trial could end within several weeks, the election may not be resolved. The campaign that loses the trial could appeal the judges' decision to the state Supreme Court. A federal case also is possible.

In a blow to Coleman's campaign, the judges ruled Wednesday that Pamela Howell, a Republican election judge from Minneapolis, could not complete her testimony because she had prepared a document about an alleged ballot mishap and provided it to Coleman's campaign, but not to Franken attorneys, before the trial. Coleman's campaign wanted to use the witness to argue that some votes were counted twice.

State Elections Director Gary Poser was to continue testifying before the court, but a morning argument among the attorneys delayed that questioning. Poser then had to leave to catch a flight to an election conference in Florida.


Coleman's campaign still plans to end its case with additional testimony from Poser on Monday.

"With all the usual caveats," Ginsberg noted.

The Coleman campaign gave reporters copies of more than 300 St. Louis County absentee ballot documents that it said were related to votes that were counted election night. Those votes would be considered illegal under a recent judicial ruling, Ginsberg said, because they contained problems, including missing voter and witness signatures and address discrepancies.

One envelope had no voter information, but the ballot inside still was counted, the campaign said.

Those "illegal" St. Louis County ballots represent more votes than the 225 that separated Franken from Coleman after the recount, Ginsberg said.

There are similar problems in counties around the state, Ginsberg said, but the campaign highlighted St. Louis County because it expects Franken's campaign to call a St. Louis County election official to testify in the trial.

St. Louis County voters favored Franken in the election.

Ginsberg repeated his key argument from the past week that the court's decision to exclude some absentee ballots from consideration in the trial is problematic because similar ballots were counted in the election.


"The court has the responsibility to reconcile the issues," he said.

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