Every ballot tells a story. Or maybe it doesn’t.
That’s the debate that attorneys for Al Franken and Norm Coleman grappled with in oral arguments this morning before the Minnesota Supreme Court in the U.S. Senate election contest. Following a seven-week trial — which featured 142 witnesses and roughly 20,000 pages of legal documents — a three-judge panel determined that Franken won the election by 312 votes.
Joe Friedberg, Coleman’s lead attorney, argued today that there were widespread disparities across the state among which absentee ballots were rejected. He wants the case remanded to the three-judge panel so that roughly 4,400 additional absentee ballots can be considered for inclusion in the vote tally. In particular, Friedberg argued that Franken-friendly areas of the state applied a more lenient standard in accepting ballots.
“If people from around the state had all cast their ballots in Minneapolis or Ramsey County, there’d be half as many rejected ballots,” Friedberg said. “That’s what the numbers show.”
But Marc Elias, Franken’s lead recount attorney, countered that some variance in the election system is necessary to allow for efficient and effective elections. He further stated that Coleman had failed to present evidence of specific ballots that were improperly rejected.
“Don’t tell us there are some 4,400,” Elias said. “Tell us which are the ballots.”
Most legal analysts believe that Coleman faces an extremely difficult task in convincing the Supreme Court to overturn the ruling of the panel. Perhaps indicative of that, Friedberg faced persistent interruptions and questioning throughout his arguments.
“I am very bothered by your offer of proof,” Justice Paul Anderson stated at one point, echoing the Franken camp’s assertion. “They’re basically just lists, lists of names.”
Friedberg countered that the trial court failed to allow them to introduce the specific evidence necessary to make their case. “I couldn’t get it in, and I tried to the point where I strained the court’s patience.” he said. “I didn’t want to go any further than that.”
Justice Alan Page questioned whether Coleman had reversed his legal arguments, citing a previous court document in which he’d argued for a strict enforcement of the state’s standards for what absentee ballots should be accepted. “Is that consistent with the argument you make today?” Page asked.
“No sir, it’s not consistent,” Friedberg acknowledged. “When we realized that whether your vote counted depended on where you lived, we changed.”
Elias received slightly more delicate treatment from the justices. He argued that the universe of contested absentee ballots is only about 300 — or slightly less than the lead currently held by Franken.
“It would still be impossible for the appellants to make up the difference,” Elias said. “Al Franken received more lawfully cast ballots on election day than Senator Coleman.”
Justices Christopher Dietzen and Lorie Skjerven Gildea were most vigorous in pressing Elias on the issue of whether illegal ballots had been accepted. In particular, Dietzen queried Franken’s attorney on ballot envelopes that lacked a witness signature. Elias conceded that it’s likely some ballots were improperly counted, but that such judgments can only be made after considering a full history of the ballot.
“We don’t know the story behind that ballot,” he said, noting that there could have been a replacement ballot. “There are reasons why the election officials accepted and rejected ballots.”
Friedberg, however, questioned the narrative value of each individual ballot, arguing that the disparities in the system were systemic. “Every ballot doesn’t tell a story,” he said.
Coleman has vowed to continue pursuing the legal contest and has been egged on by the Republican leadership in Washington. If Franken takes office he would become the 60th Democratic senator, giving President Obama a filibuster-proof majority.
Franken has asked the Supreme Court to order Gov. Tim Pawlenty to issue an election certificate, thus paving the way for him to be seated in Washington. But the Republican Governor has suggested that he might not sign a certificate even if the state’s top court rules in Franken’s favor.
Only five justices are hearing the case. Two justices, Eric Magnuson and G. Barry Anderson, recused themselves owing to their participation in the State Canvassing Board that initially certified Franken the winner back in January. The justices gave no indication when they would rule on the matter.
“We shall take this matter under advisement and an opinion will be forthcoming,” Page said at the close of the hearing.