It's been a dramatic week, relatively speaking, in the Coleman v. Franken election contest trial. The attorneys have worn quite a path to the judges' chambers as the parties have argued objections to evidence and testimony throughout the week. With the likelihood that tomorrow's proceedings will be canceled on account of snow, I've decided to offer a review of the week that was, beginning at the end.
The biggest news in some time came late tonight: Coleman's first legal win in this effort -- to have 1500 ballot envelopes opened, to determine if there are registration cards inside. With that news, we may finally have a clear signal that we may be near the end of the trial -- or, at least, we have seen the beginning of the end.
Before I get to that, perhaps I need to back up a bit.
The trial today actually had a bit of drama, for the second consecutive day. The meat of today's testimony was the cross-examination of Cindy Reichert, Minneapolis' Director of Elections -- the gal who determined that 132, not 133 ballots (as has been generally reported), had been lost after being stuffed in envelopes on Election Night. Her testimony, as was described at MinnPost online, offered up the trial's singular O.J. moment, when Franken's lead trial counsel had the witness feel a Tyvek plastic envelope, and offer support for what can only be called the "Slippery Envelope Theory".
Overcoming objections from the Coleman side, Franken attorney David Lillehaug, got everything from this witness he could have wanted. First, he handed the witness Tyvek envelopes like the ones used on Election Night. The witness agreed with him that this election was in slippery envelopes. So, it was understandable how one might have been lost in transit.
Here's how the MinnPost described the unfolding of this "O.J. moment", as Lillehaug began to weave his Cochran-esque magic (I hope I'm within fair use rules, because it's really well done):
"Now, I’d like to show you a couple of Tyvek envelopes," he said calmly to the witness and the court. "They are not from the city of Minneapolis. They are merely for illustrative purposes."
Now catch how thorough the man was.
"They were purchased this morning and they were manufactured by a local company, Quality Park Products in St. Paul, Minnesota," Lillehaug said, turning to the judges, who were impressed and smiling. "And, by the way, Tyvek is the registered trademark of the DuPont Corporation."
A key fact, of course.
As he approached witness Reichert, about 15 feet away, he passed Friedberg, who didn’t object to the demonstration.
"I would feel unpatriotic," Friedberg said.
Next, the MinnPost recounted the exchange between Franken's counsel and the witness:
Lillehaug asked Reichert about her familiarity with such envelopes. Yes, she said. But the ones that are missing might be bigger.
He asked: The material is the same, yes? Yes, she said.
"Now, Ms. Reichert, I’d like you to take the two envelopes and put your hand on one side of them and one hand on the other and rub them together," Lillehaug said.
She did so. You could hear the shhh-shhh-shh-shhing on her microphone. The recount had been reduced to an election official rubbing two envelopes together.
(A genie did not appear.)
"How would you characterize the interface between the two envelopes?" Lillehaug asked robotically.
"They are slippery," she said, with a grin.
"They are slippery envelopes?" he repeated.
You betcha.
With that bit of fun over and done, Lillehaug had the witness offer an explanation why the missing envelope, marked 1/5, had so many fewer ballots than the other envelopes. Though she was not allowed to finish her explanation, she did get enough of it out for the judges to grok what must have happened. Her explanation, which was that the envelopes were stuffed and piled up as that was done -- and numbered afterwards, such that the last one filled was the first one numbered.
Coleman attorney Joe Friedberg tried to shake the witness, yelling at Ms. Reichert to get her to admit that there is no reliable basis for saying how many ballots were lost. "Are they reliable, yes or no?," Friedberg angrily demanded. The witness said "No", but wanted to qualify the answer. Lillehaug resumed his examination, and had the witness explain that the numbers on the machine tapes were accurate and corresponded "exactly" to the "number of voters present in the precinct" -- that she believed the total was an accurate number and should be used. To not use the machine results would "disenfranchise" the voters whose ballots were lost.
After Reichert's testimony, it seems inconceivable that the ECC would reverse the decision to use the machine totals, which netted Franken 46 more votes than he would have if only the remaining ballots were counted.
Thursday marked the fourth day running that we learned the ECC issued a ruling against the Coleman side. After the close of business Monday, we learned that the Coleman request for a Temporary Restraining Order was denied. Coleman had wanted to revisit the 933 ballots which both campaigns had already stipulated should be counted, withdrawing all claims against them. Coleman wanted to stop the redacting of identifying numbers to preserve the possibility of rejecting some of these ballots, based on the standards the ECC announced on Feb. 13th, which were intended to apply to only those ballots before the court. The ECC refused to allow Coleman to withdraw from the Stipulation his attorneys had entered.
Monday also brought us an Order which produced 12 additional votes for Franken, based on the ECC's acceptance (granting summary judgment in favor) of Franken's counter-claims. Franken's attorneys argued that there is no statutory requirement regarding dating signatures on the absentee ballot envelope eligibility certificate. The statute lays out the four bases for rejecting absentee ballots, and mismatched dates is not among those reasons. The ECC agreed, but refused to rule one way or the other on these 35 ballots, because the Franken campaign did not establish that the voters did everything else right. Stay tuned for more on those ballots.
The ECC did certify 12 ballots that election judges had already said should be counted, but had been blocked by Coleman's refusal to agree. There are 87 other ballots which the ECC said Franken had not given sufficient information for the court to certify. Stay tuned regarding these ballots next week, too.
On Tuesday, we learned that the ECC had refused to certify a class action, forcing the Coleman camp to proceed by offering testimony about individual voters, to establish the supposed legitimacy of their ballots.
Wednesday was probably the most dramatic day, as Coleman's attorneys set out to establish that ballots were duplicated and counted on Election Day, without labeling them as duplicates -- thus, resulting in double-counting when original ballots were counted in the recount, along with all the other ballots that were counted on Election Night. Their witness, Minneapolis election judge Pamela Howell, a Republican who had contacted the campaign, had trouble recalling certain information on cross-examination. During a courtroom recess, Coleman attorneys showed her a file she had created to assist her in preparing for trial.
The problem was that the Coleman legal team had never shared that document with the Franken side. When those facts emerged on further cross-examination after the recess, Franken attorney Lillehaug moved to have the witness' testimony struck from the record. The court granted this rare request, striking the witness and her testimony -- though the court reversed itself on Thursday morning.
Thursday brought another victory for Franken's side, as the ECC ruled in favor of Franken's motion to quash a request by Coleman, which would have compelled election officials to provide certifications with respect to each of the various ballots that Coleman wants counted. In effect, Coleman was asking the election officials to do his attorney's work for him -- to provide all the assurance the court would need to admit the ballots in question. Coleman wanted the certification to establish that the ballots hadn't been counted, that the voters had completed registrations, that their witnesses were qualified, and that the voters had not voted on Election Day.
While Coleman's request might seem an efficient way to show which ballots were wrongly rejected, the request runs afoul of the hearsay rule. Documents can be admitted to establish the truth of the matters in the documents, in lieu of actual testimony, if they are created in the ordinary course of business. Because this was an extraordinary request, that exception to the hearsay rule would not apply. Nor would the "catch-all" exception, because the ECC ruled that testimony, subject to cross-examination, would be the best way to establish the legitimacy of the ballots.
Coleman's attorneys have dropped hints they might wind up their case this week or next, but the various rulings against them have left them a long way from proving their case. Few of the witnesses they have called have established that their ballots were properly cast. Indeed, a number of the witnesses gave testimony that supported the decisions to reject their ballots. Moreover, Coleman has only called a handful of witnesses. The ECC is demanding a ballot-by-ballot proof. He's wasted time with various election officials who could not possibly offer any useful information in that regard.
It's been painfully apparent that Coleman has despaired of winning the election contest, and isn't even going to give it the old college try. If he is serious about winding up his case within days, he cannot seriously hope to make the case for double-counting or to prove enough absentee ballots were wrongly rejected to make a difference. Unless his attorneys do an about face on that claim, and start calling dozens more witnesses, Coleman will not be able to prove most of his contest claims.
The testimony Coleman's attorneys have gotten from the election officials they called as witnesses was not aimed at winning this contest. Rather, it was aimed quite clearly at laying the foundation for their argument that the conduct of the election constituted an equal protection violation. In short, they're using the trial to lay out their argument on appeal.
Despite his various setbacks, Thursday did bring some good election contest news for Coleman. The court reconsidered and vacated the order to strike Howell's testimony. This will make it easier for Coleman to establish at least a strong likelihood that some double-counting did occur. That said, Coleman previously identified 25 precincts where he believed he could close the margin by 100 votes, if double-counted original ballots were removed.
Even with Ms. Howell's testimony, Coleman needs to find at least 24 other witnesses to corroborate his claims in the other precincts. Furthermore, even with all that testimony, Coleman would need to back it with testimony regarding counting of unmatched originals in the recount. There hasn't been any such testimony yet.
As I mentioned at the beginning of this piece -- many words ago -- late Thursday, an order also was issued to open approximately 1500 ballot envelopes that had been rejected because the voter was not registered. The reason for opening those envelopes is to see if the registration card was mistakenly placed by the voter within the secrecy envelope. There's no way to know how many of these might contain registration cards. Nor is there any way to know which candidates stands to gain the most votes, if any, from this process. Most of the ballots come from the strong 'Franken' counties of Hennepin and Ramsey, but there are some pro-Coleman suburbs there, and Coleman claims that 700 of these ballots come from Republican-leaning precincts.
Based on the way this trial has gone so far, these ballots may be Coleman's last, best hope...unless he gets a sympathetic hearing before the U.S. Supreme Court.
In previous diaries, I've discussed why the SCOTUS might prove problematic for Norm. Without getting into too much detail, and without even touching on the substance of the equal protection argument, Norm may be out of luck by the time SCOTUS gets the case. It's possible, by that time, that Franken will have successfully sued to force Gov. Pawlenty to sign his election certificate.
Once Franken has been seated by the Senate (of course, this might be filibustered by the GOP -- will they go to the mat on this one?), I do not believe that there are five justices on the Supreme Court who will vote to overturn the election. In fact, the one who will probably write the opinion denying Coleman will be Justice Scalia, who wrote the leading opinion on this question, when he was a judge on the D.C. Circuit Court of Appeals.
So, that's where we're at. Minneapolis is declaring a snow emergency tonight, so there won't be any ballots opened tomorrow. Still, next week, they will be opened, and additional ballots will be counted. When that's done, we may have a much clearer idea of who will win this election, and by how many votes.
*** Update -- As VoteforAmerica notes in the comments section, the 12 votes I refer to above as Franken votes, have been admitted by the ECC to be counted at a later time. Though they appeared on Franken's list, it is impossible for us to know how they voted. Most likely, Franken's attorneys included those names based on probabilities -- where the voters live. Indeed, Franken's lead attorney in this effort, Marc Elias, has said as much, though some ballots were chosen in Coleman areas to offset the ballots Coleman chose to pursue in those areas. From the outside, we have no way of knowing whether the Franken campaign has any reason to be confident in how the voters cast their ballots. That goes double for the ballots which are to be opened in the coming days, searching for registration cards.
**** Further update -- All the Minnesotans are insisting the state will be open for business tomorrow, despite today's heavy snowfall. I demur and bend to their greater knowledge and their legendary heartiness. So, assuming that all goes forward tomorrow, tune it to The Uptake for more fun and frolic....
***** And, for all you Ben Ginsberg haters -- and who isn't a Ben Ginsberg hater? -- the dude withdrew his pro hac vice motion to appear in this case, so we won't get to see him play lawyer. We'll have to settle for his amazing spinning pressers at the end of the day....