Franken attorney: “I think we are done”


The danger of paper cuts was greater than the chance that Al Franken would lose his 225-vote lead to Norm Coleman today as Minnesota officials ripped open 351 more ballots from last year’s U.S. senate race in front of the state’s election-contest court. Indeed, Franken increased his lead by 87 votes.

“I think we are done,” Franken attorney Marc Elias told reporters after the counting. “It’s no more complicated than this … More Minnesotans voted for Al Franken than for Norm Coleman.”

Asked about Coleman’s pledge to battle on, Elias said, “I don’t think there is much of a case on appeal, candidly.”

Coleman attorney Ben Ginsberg said he was “saddened and disappointed,” adding that there should have been 10 times more ballots counted — a reference to the Coleman camp’s submission of 4,800 uncounted absentee ballots they wanted the court to review.

“We will be appealing this to the Minnesota Supreme Court,” he said, as soon as the court issues its order based on today’s tally, which in Ginsberg’s estimation could come as early as this week.

Coleman’s appeal will make three claims, Ginsberg said. Voters received unequal treatment under the law when similar ballots received different treatment by local officials in different parts of the state. The election-contest judges issued a “new set of rules” with their Feb. 13 ruling restricting the types of ballots they would review. And those restrictions meant that many ballots cast on Nov. 4 fell into now-illegal categories.

Franken gained votes because in the narrow “universe” of ballots the three-judge panel agreed to review, Ginsberg said, “there were more Franken precincts.”

While his staffers tore into sealed ballot envelopes on the courtroom floor, Secretary of State Mark Ritchie sat in the second row of the courtroom gallery, looking like a man not fully at ease. He seemed happier afterward when he told reporters, “I think we’re getting much closer to the end today. This was an important next step.”

Asked if he saw an impending split between himself and Gov. Tim Pawlenty over whether to sign an election certificate, Ritchie said no. Pawlenty has signaled that he may not sign an election certificate for months — longer than a state Supreme Court would likely take to rule, suggesting a potential conflict with Ritchie. State law says both the governor and secretary of state must sign the certificate.

“I assume we are both going to follow the order of the Minnesota Supreme Court,” Ritchie said. The Supreme Court has said a certificate should be issued “at the end of the state court process.”

In reference to talk of an appeal to the federal judicial system, Ritchie said the U.S. Supreme Court “is not the state court.”

Neither Franken or Coleman was in court today. Coleman, who has made frequent appearances during the course of the seven-week trial, had another engagement, Ginsberg said. But each side’s coterie of attorneys kept their legal-eagle eyes peeled for anything untoward, but no objections or ballot-challenges were voiced.

Here’s what they were watching.

First came two hours of work as a pair of two-man teams carefully removed ballot envelopes from inside security envelopes, then removed ballots from inside ballot envelopes before unfolding and stacking them.

State Director of Elections Gary Poser was ringmaster, announcing each stage of the proceedings and standing at the center of the courtroom overseeing a two-ring circus.

Deputy Secretary of State Jim Gelbmann sat at one table as half of one of the two-man teams. He seemed aware of being in the spotlight, bobbing his head and lowering his shoulders as he expressively pressed down the unruly stack of ballots.

But democracy is messy. Each ballot had just emerged after being folded for five months or more inside two envelopes, and the stack wouldn’t stay flat. Minnesota’s reliance on paper ballots has often been pointed to with pride by state officials. This was the downside.

The only sound — in a packed courtroom that’s usually used by the state Supreme Court — was the rattle and ripping of paper.

When his team’s work was done, Gelbmann wiped the tabletop clean of any paper crumbs.

Several times, an absentee-ballot envelope contained only a loose ballot, not enclosed in the customary security envelope. In those cases, Gelbmann reached for a blank white envelope to serve (for less than an hour) as a substitute security envelope. Then he demonstrated how to moisten an envelope while you’re on camera: Put the flap into your mouth and move it from left to right. Do not stick out your tongue to lick.

Finally Poser took a seat at a broad wooden table to sort the final stack of ballots into piles for Franken, Coleman or “other.”

Franken attorney Elias and Coleman attorney Tony Trimble hovered over Poser from either side, each leaning with his weight on four fingertips pressed into the table top.

A string of more than a dozen uninterrupted votes for Franken within the first 20 counted didn’t bode well for Coleman, who never led in the cumulative total as Poser called out the ballots one by one.

In the end, Poser announced the day’s final tally: Coleman, 111; Franken 198; and other, 42. That’s fewer than 400 ballots because of a mix-up: Some ballots that the judges ordered to be opened had already been counted.

The judges received Poser’s report and court was adjourned. Counting 351 ballots had taken about three hours.

And that was one-ten-thousandth of the effort put forth during the statewide hand recount of 2.9 million ballots at the end of last year.

That recount, as Elias pointed out repeatedly to reporters, ended with the same result as the election contest phase appears to have reached today: Al Franken has more votes than Norm Coleman.

Related: Deputy Secretary of State Gelbmann didn’t vote for Franken: “No misgivings whatsoever”