(From the diaries. Brings us up to speed on the Coleman/Franken showdown and gives a glimpse at the week ahead. SusanG)
The trial in Election Contest Court reaches a turning point, possibly TODAY: plaintiff/contestANT Coleman will rest his case.
A look back at how Norm's done on the 3 parts of his case.
The new surgery fad sweeping Minnesota courthouses this week: as many as 1500 absentee ballots are carefully opened and quickly resealed without looking at the votes.
Your chance to help out Al Franken and/or The Uptake.
Some Election night TRUTH from an election judge and an odd moment in a wineshop.
Franken leads +249
A) The Transition Point
Thank GOD! (Druids among us can simply rap knuckles on the nearest piece of oak to invoke their protectors; ha! and now you know "knock on wood" for good luck) We are at the Legal Inflection Point! Perhaps even today we will hear the 3rd sweetest words any MN political junkie can hope for from Joe Friedberg/Fritz Knaak/Tony Trimble/Joe Langdon: "Plaintiff Rests." (If you are wondering, #2: (Norm Coleman speaking:) "I will fight no more/ concede/ need to spend more time with my
creditors family/ seek new opportunities..."; #1: From the floor of the US Senate: "I, Al Franken, do solemnly swear...")
If not today then Tuesday/Wednesday but the words are at hand. There will be a flurry of motions from both sides but 2 that will merit attention.
First the Coleman side will move (Summary Judgment I think) they have made their case with such factual clarity, spiritual force, legal brilliance, moral integrity and perspicacious rodomontade (buffs fingernails!) that the ECC should make a finding for the Coleman side on the spot, rule from the bench they need not even HEAR the Franken side of the case, send Norm to the Senate and send Al packing to St. Louis Park (where we love him.) Really; I think they will move this, pro forma if nothing else.
Prediction: Court will be recessed immediately for 30 minutes. Muffled, endless, shrieking laughter will be heard down the hall from the judges chambers. 1 male and 2 female licensed physical therapists will be seen entering chambers. Their white jacketed supervisor will give Noah Kunin an UpTake update explaining the 3 are specialists in rib massage, rubbing away hurts after a particularly convulsive session of prolonged laughter.
Second the Franken side will likewise move (either Summary Judgment or Motion to Dismiss; esquire types among us can give us the refinements and distinctions) to end the case NOW on grounds Coleman has NOT met the burden of proof (which rests on the contest-ANT) to show Coleman can overcome Franken's +249 lead and so has "the highest number of valid, lawfully cast votes", which is what the ECC exists for.
Prediction: ECC will not grant this because the stakes are too high. ECC will not dismiss this out of hand (which they should do to #1 above). ECC will "take it under advisement" just like they do with the Coleman Motion.
AND in the next few days the ECC may well "Grant in Part and Deny in Part" Motion for Summary judgment for both sides. They have done this on other motions and seems to be a careful way of proceeding. They seem to like to let the legal glacier move forward here 10 meters over night, move there 3 meters one day, and then crush a particular boulder at 2 in morning with explosive force that rips the tents of the ice watching team with granite shrapnel. (I still think the Coleman side is facing this mile-high glacier in a box canyon and this will not end well.)
C'mon past the Orange fold for your Monday set-up for the week...
B) The Coleman Case: Assessment
There were 3 main pieces to the case.
First the Minneapolis precinct that lost an envelope containing 133/132 paper ballots. We have evidence these 132/133 voters signed in (the voter logs) and that they voted (counting machine tapes vs. paper ballots show a difference of 132/133). When the Recount came the ballots (in an envelope marked "1 of 5"; we have the other 4) were lost and have not yet been found. The 133 favored Franken by net +46.
Coleman has held since late November (when the loss was discovered) these 133 ballots never happened/do not exist and therefore they should NOT be counted, thereby reducing Franken's lead by net -46. The Reichwing noise machine has their sheep bleating endlessly: "Acorn votes!" "133 imaginary ballots" "No evidence." Actually the voter logs and machine tapes are STRONG evidence in favor of these votes. (BEST evidence would be the ballots themselves, BUT if we had the ballots NONE OF THIS part of the case would have happened at all!)
Last week Team Coleman had Minneapolis city elections director Cindy Reichert on the stand for most of 3 days. Atty. Joe Friedberg in his own glacial way went after this point for hours. Team Franken objected. Lawyers argued. When the snowflakes settled a) Cindy Reichert was unshaken b) Joe Friedberg was forced to admit in open court for the Coleman side the 133 votes existed c) Joe was reduced to growling at one point toward Lillehaug that Team Franken must have been (improperly) coaching Coleman witness Reichert! (Which shows just how damaging she was to their case on this point.)
Summary: These votes ARE in the state certified count. They will stay in. ECC will not overturn.
Second, Coleman contends certain absentee ballots and their duplicates were mishandled so that perhaps 100-150 votes should be removed from the Franken total.
When an absentee ballot arrives (or if perchance an in-person ballot is physically damaged somehow) folded in its envelope the folds and the light weight of paper will jam a vote counting machine. An election judge, in the presence of 2 witnesses from different parties, takes the absentee and duplicates the ballot on the heavy voting machine paper so it can be run through the counter. (The original and the duplicate are supposed to be marked "original 1, duplicate 1, original 2, etc."). When the Recount came both Coleman and Franken agreed (Rule 9) that ONLY the originals would be used, and the duplicate NOT counted (obviously this would inflate the totals.)
Coleman claims in certain cases in heavily Franken precincts both the original AND the duplicate were counted in the Recount, to the tune of about 100-150 in favor of Franken (no word that ANY of these pairs were "double counted" for Norm.)
If true this is a serious problem....if true. Evidence would be nice. Testimony from witnesses would be nice. On Wednesday the Coleman team called Minneapolis election judge Pamela Howell to establish just this claim. She said in her precinct "some" of the originals and duplicate were NOT marked so this was possible. She said she "heard" another poll worker exclaim during the Recount something about double counting. As an election judge with 30 years experience she... well, this is a blog. Let a Star Tribune blogger fighting the good fight tell it:
Where is Howell's Incident Report?
What stinks the most about Howell's testimony is that it directly contradicts the paperwork filed on the day she claims it happened. IF there was an election irregularity such as inadvertently counting ballots that should not have been counted, state law REQUIRES an Incident Report be filed by Howell. None was.
Instead Howell came up with this story only AFTER the double-counting accusation was made by Coleman. Even then, instead of going back and filing an Incident Report, or going to the SOS, she went directly to Coleman and reported it just to Coleman. At that time, the recount was still active, and she was still obligated to file an Incident Report. She did not. She has violated the law regarding reporting at the least. At the worst, she is committing perjury.
Howell also made notes to herself about this. She shared those with Tony Trimble of the Coleman team. Trimble did NOT share these with the Court or with the Franken team on Discovery (MAJOR NO-NO). When this non-sharing erupted Wednesday the court recessed for 10 minutes to sort it out.
While the recess was on Joe Friedberg took a copy of the notes from the Coleman table over to the stand and showed them to Howell to "refresh her recollection." That little stunt came to light about 10 minutes after the resumption of Lillehaug's (for Franken) cross-examination. This was so over the top the Court excused Howell and struck her testimony (THE dramatic highlight of the trial by far.)
Overnight Tony Trimble went crawling to the judges saying he had inadvertently forgotten to give this one piece of paper to the Franken side in discovery, I'm sorry, it'll never happen again, etc. The Court relented and vacated the Order to Strike.
Friday we resumed with Howell back on the stand. Trimble passed along certain other documents from his office to Franken's side: several e-mails. Lillehaug goes at it again, quoting from them: "we don't want an affidavit from you yet....it might lock you in to your testimony.....then we would have to pass this one in discovery......a strategic decision to keep what you have to say flexible.....".
Jumpin' elk in heat! Withholding? Stay flexible? Joe Friedberg of the Coleman team got up to say, "All this happened BEFORE I got into the case. Don't blame me, please." (When your own team goes over the side, Tony...) Lillehaug moved to Strike not only the testimony BUT THE ENTIRE CLAIM in the testimony (the whole double/count duplicate ballot assertion.)
I was appalled that a lawyer would state in an E-Mail that they planned to hide evidence from discovery and also hide a witness from witness list. And the reason was to prevent the defense from rebutting their case!!
Summary: Court promised to rule on this today. I think they may strike the testimony but let the claim stand (leaning against a melting snowman). The claim has NOT been established. That way n their final ruling on the whole case I think the court can say, "We admitted the claim and found it without merit," (closing another door on appeal) and makes no change in vote totals.
Third, rejected absentee ballots. Of the 286,000 absentee ballots cast by election day about 11,000 were rejected by local election officials. There are 4 reasons to rejected an absentee ballot and a ballot must pass through all four gates, grasshopper, in order to reach the nirvana of counted-ness. In 1346 cases the local officials admitted they goofed ("5th pile" ballots) and sought to correct their error. On Jan. 3, 933 of these were opened and counted, and once the ice dripped off the pine needles Al's lead went from +49 to +225. (The remaining ~400 are still hanging fire but ignored for now.)
Coleman has sought (through mind-numbing days) to find enough ballots among the rejected (that he claims were wrongly rejected) to overcome this lead. When trial started he was forced to declare which ballots might be at issue. Not 10962 in all, but specifically? 4797, he replied. The Court later whittled this to 4623 because 174 ballots had arrived late, and MN law does not allow late arriving ballots counted, no exceptions.
On Friday, Feb. 13 the court ruled 12/13 of 19 categories of absentee ballots also rejected, which reduced the Coleman total to 3300-3500. Other rulings & testimony have cut this down to somewhere around 2000.
Summary: Coleman needs to show the court why any, some or all of these ~2000 should be opened and counted (Thats right. They are still sealed and NO ONE KNOWS how they will break. Coleman picked them from precincts and counties around the state that otherwise went for him, so he's playing the odds, but its still trying to draw a K-Q to fill in your 10-J-Ace.) Still, there is perhaps enough uncertainty here that the Court will let this go to the Franken side of the case. Its hardly been proven, but the math is still 2000 maybes vs. a +249 lead.
Also I think the Court will order the remaining "5th pile" ballots (about 400). The remaining 933 broke in Franken's favor by +176....so by the same measure these 400 or so should break for Franken at least +70.
C) Pile 3A
Friday the ECC put out an Order to election officials around the state. Reason 3 that an absentee ballot can be rejected is that the voter is not registered to vote. Fair enough. Local officials check the absentee voter's information against the registered voters log and knock off anyone not registered.
But the absentee ballot packet INCLUDES a voter registration card in case a voter has just moved or is unsure if they are registered. (MN has election day registration for in-person voter which eliminates the need for provisional ballots, so we don't have those.) This card is supposed to be in the outer, mailing envelope of the absentee ballot. Most of them were and local officials could get on with those ballots.
But statewide it seems in maybe ~1500 cases voters might have put this registration card in the inner, "secrecy" envelope. Since as far as the local officials could tell the voter was not registered and there was no registration card the ballot was rejected.
The Court ordered officials around the state to open such "pile 3" ballots' secrecy envelope, basically feel inside for such a registration card, and if there is one, pull it out, and reseal the ballot (still preserving voter secrecy.)
Then, one of 3 things:
a) if there is no card, ballot stays rejected for reason 3 (not a registered voter.) Make a list of these names.
b) if there is a card is it fully and properly filled out? NO: note which ballots on a new list and what the defects are.
c) YES: note which ballots on a new list.
Then, all ballots stay in localities. All three lists are due in to Sec. of State's office by Wednesday, March 4.
Prediction: These aren't counted yet, and those that are registered still have to pass the other 3 gates (like did voter vote in person? If so, absentee ballot is canceled.) Best guess around the internet is broadly 600-900 of the 1500 may be valid on this matter. If so, and if they otherwise pass muster, I think the Court will eventually order these opened and counted, probably by the Sec. of State's office. We'll see.
Kos number cruncher Vote for America has up a detailed analysis of the Pile 3A issue here:http://www.dailykos.com/...
D) Money Matters
I haven't done this before but I have to; you know, the "89th diary in a series" rule. Like all pastors (wannabes, current, and once-upons) the almighty dollar is a competing deity but it needs to be faced.
Have you enjoyed David Lillehaug, Marc Elias, Kevin Hamilton and William Pentelovitch whipping the frozen snot out of the Coleman team? Have you marveled and delighted at those crisply written, deeply detailed, motions and memoranda? Have you been impressed at how the Franken Team has that Obama-esque air of focus, competence and relentless energy that never seems to miss a beat, that makes others dance to their tune and stumbling to keep up?
Yeah I have been too. Starting this week when the Franken team starts to put on its case it will be in miniature what is happening in DC. The grown-ups have arrived. This is how things get done. Reichwing pundits or hallway easel shows, OReilly/Coulter/Limbaugh farts or Ginsberg screeches are "sound and fury, signifying nothing." In DC, Ledbetter passes, S-Chip passes, Stimulus passes, a schedule for the troops homecoming is out, a state of the union is given with such trip-hammer blows clanging far into the night that even the obstructionists are forced to quit sitting on their hands.
In the ECC you will see witnesses called that support the calling side, prepared, accurate. There will be affidavits, ballots offered in evidence, motions, precedents cited that will go like a thing of legal beauty.
But both kinds of effort, Obama's and Franken's, don't come for free. Elias and Lillehaug are worth every penny, and they command a lot of pennies. Its time, Kos Nation, to click on the link and pony up. Why not add an ".09" to let AL know its coming from the Orange side of the street? Yes I know, Coleman is supposed to pay up, and one way or the other he will, eventually. But the need is now, the hurt is now, but the hope is now. C'mon-- give it up for Al Franken. Give up that latte every Friday (Your Friday Frappe for Franken!) and send along the foam on top. A little or a lot it all helps. Thank you.
AND IF you are reluctant to give to a politician but still want to give to a good cause, how about the UpTake? McIntee, Kunin, Jason, Jennifer and the merry band have been doing wonders on a shoestring and running circles around the trad med and corp media. But Noah had to beg a couch from the locals so he could sleep in the UpTake office rather than spend the gas money to commute to & from home. McIntee sometmes broadcasting by iPhone is no joke.
As the stimulus package is arriving there are local stories of how its being split up. McIntee notes the Duluth News Tribune and the Twin Cities dailies are getting $238,000 to help these news organizations "better use the internet." Oh yeah? Thats easy. Plug in a T-1 line to jerome a paris and bondad and krugman and all the business news is covered. A branch to brownsox gets you elections stuff around the country. And a third link to THE UPTAKE will get you all the local news you can't be bothered to cover.
$ 238,000! The papers AREN'T going to use it well and they WON'T give it to the shovel-ready Uptake. McIntee reports $238K is more than the entire YEARLY budget at the Uptake. Jason Barrett says they are good 'till the beginning of April, and then....
So if you are inclined, if you'd like to beat the trad med at their game, if you like underdogs, if you think what the Uptake does with nothing is impressive, give them a boost. Tax deduct on the right, straight giving on the left near the top.
And me? "Well, we all want change. We all need change. We all are the change we need. We have within us the change. And if all you will just reach in your pocket you can feel the change there. And if you then pull out that change and pass it forward to me, well then I will have change....." (Returned, stamped REJECTED from Obama campaign staff writers to WineRev.)
Ehhh....if we make it to v. 100, maybe I'll accept a donation (although you people have been great so many times and so many ways already! Go on! Take an 'aw shucks' out of petty cash, OK?)
E)Too good to Pass Up
You know how Norm Coleman "won on election night" that the Reichwingers keep chewing their cuds about? Well here's something from the NW suburb of Maple Grove (ex-urban, fast-growing McMansion territory) that was on the Star Trib blog
Here are some election night fun facts
I was an election judge in Maple Grove. We didn't even get our absentee ballots delivered to our precinct until 11:30pm. By that time Coleman had declared himself winner. By the time we had prepared the AB's for scanning it was 1am. We didn't finish tallying our precinct results until 3am. If you look at the election results in the Strib the next morning you would have seen results showing 0 precincts reporting in Maple Grove. In case you don't know, there are a lot of people in Maple Grove. That is why you can see a huge swing in vote tallies overnight. So when Coleman declared himself winner, to cite an old adage, he was counting his chickens before they hatched.
At the Wineshop (no kidding)
A quiet morning (its February) and this 40-ish guy comes in, suit and cellphone conversation, "Yeah, I forgot, but I'm here at the wine shop in xxxxx." Hangs up says to me, "I'm running late and I forgot to pick up some wine at Trader Joe's. You don't carry any '3 buck chuck'?" "Sorry I don't."
"Ok, let me, ah, have 2 bottles of Beringer White Zinfandel (bleeh! 10% alc. and maybe 15% sugar water added; really) and 2 of these and 2 of those." Whole thing came to under $40. "Great. That'll be just what I need." Picks up bag, gives me odd, earnest/bragging look that made me think this might be a gag gift. Says seriously (so I believed him), "Need these for Governor Pawlenty's meeting with us here in (name of suburb) later this morning."
I put mouth in motion before brain in gear: "Pawlenty? That explains the White Zinfandel." He stopped and laughed till he sagged against the door frame. Didn't say anything else and left. Dodged a bullet I hope....
Thats the latest from yust southeast of Lake Wobegon, not far from New Narvik.