Just 400 previously rejected absentee ballots to be reviewed for possible counting
Finding seen likely to favor Franken; Coleman Attorneys vow to appeal...
By Brad Friedman on 3/31/2009, 5:56pm PT  

Just in from St. Paul, the 3-judge panel in MN's U.S. Senate Election Contest have returned to issue a ruling...

In a potentially decisive ruling, a panel of three judges today ordered up to 400 new absentee ballots opened and counted, far fewer than Republican Norm Coleman had sought in his effort to overcome a lead held by DFLer Al Franken.

The ballots appear to include some that Franken had identified as wrongly rejected as well as ballots that Coleman wanted opened in his quest to overcome a 225-vote lead that Franken gained after a recount.

• The court's ruling is posted in full here [PDF]

Al Franken's attorney Marc Elias says: "We are pleased...Obviously, the math is going to be very difficult for former Sen. Coleman and his lawyers at this point."

Former Sen. Norm Coleman's attorney Ben Ginsberg admits: "It is pretty much of a longshot with that few ballots being put in play...We are disappointed. But we feel the court is wrong and we will appeal." During a teleconference this afternoon he strongly hinted they plan to appeal all the way to the U.S. Supreme Court, if necessary.

Earlier this week, Republican Sen. John Cornyn, chair of the Republican Senatorial Campaign Committee (RSCC) threatened "WWIII" if the Democrats seat Franken before they appeal the case to the U.S. Supreme Court, if necessary, and even if those appeals take "years."

After reviewing evidence for some 980 previously rejected absentee ballots, as submitted for consideration by both candidates, the judges found that just 400 of them met likely grounds for being opened, counted and added to the final results, though only once they are able to review the actual ballots themselves will they know for certain. They rejected Coleman's plea to use lenient standards for determining which ballots should be counted, holding instead to the strict rule of law, and allowing ballots only for possible counting if they were clearly, legally cast, according to very specific state parameters.

The judges review, they took pains to point out, was exceedingly thorough...

TPM's Eric Kleefeld reports:

Both campaigns submitted lists of ballots that they said they'd proven were legal and ought to be counted --- and here's what the court thought of them:

"Upon the Court's initial review, it became apparent that the parties' spreadsheets identifying the relevant exhibits were inadequate and unreliable. This required the Court to complete an exhaustive review of all the records and documents submitted by either party throughout the course of the entire trial."

The court thus reviewed:

"...19,181 pages of filings, including pleadings, motions and legal memoranda from the parties; 1,717 individual exhibits admitted into evidence; and testimony from 142 witness examinations, including election officials from 38 Minnesota counties and cities and 69 voters who appeared and testified in defense of their ballots. The trial evidence comprised exhibits offered in three-ring binders that, when stacked, equaled over 21 feet of paper copies."

Don't think they're just complaining about the length --- not that anybody would blame them. The court is clearly establishing the level of diligence they went to in order to decide the questions at hand --- thus guarding themselves against any appeal on procedural grounds.

In reviewing the ballots, the 3-judge panel determined that each one must be individually proven as fully legal before it can be counted, noting: "The Court gave both parties every opportunity to meet this burden. The court did not impose time limits on the length of the election contest nor did it limit either party's opportunity to call witnesses or introduce evidence."

The review of the ballots for possible counting will begin April 7th. After that, the losing candidate will have 10 days to appeal to the MN Supreme Court if he wishes.

* * *

The court noted that, at the start of the contest, Coleman “argued that close to 5,000 absentee ballots should be opened and counted.” Coleman’s claim was voluntarily reduced following prior court rulings requiring “individualized evidence” that each ballot was lawfully cast. By the close of trial Coleman identified 1,360 unopened absentee ballots he contended were lawfully cast. Franken identified 430.

The order does not specify how many of the 400 ballots to be opened and counted came from Franken’s list and how many came from Coleman’s. However, referring to Coleman’s 1,300, the court stated: “This number, however, was contingent upon the court making certain presumptions regarding whether an absentee ballot was cast.” The court proceeded to reject those presumptions, reiterating the individualized standards required before an absentee ballot can be ordered open and counted, to wit: a) that the voter was registered; b) that the individual who cast the absentee ballot did not otherwise vote; c) that the voter submitted an absentee ballot application; d) that the voter completed and signed the absentee ballot envelope; e) that the voter’s absentee ballot was witnessed by a registered MN voter or notary. Since individualized evidence came primarily from the Franken legal team, it seems doubtful that more than a handful of the 400 were reviewed at Coleman’s request.

While the order does not make an express reference to still pending motions, there appears to be little room for doubting that the court did not buy Coleman’s arguments that the court should go back and re-examine all of the absentee ballots previously counted. Indeed, the court stressed that the “recount process was transparent and open to the public.”

The court’s task is to determine which candidate received the most lawfully cast votes. That task will likely be completed on April 7th.

Ernest A. Canning also contributed to this report

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