With the Franken campaign resting its case last week, the three-judge election panel is about to begin final deliberation of Norm Coleman’s appeal to overturn Franken’s 225-vote victory in the US Senate election. His lawsuit, filed January 6, 2009, alleged that upon conducting a formal recount, the Minnesota State Canvassing Board erroneously declared Al Franken had received more votes than Coleman.
During their five-week presentation, Coleman’s attorneys focused their appeal on the allegation that votes (mainly in Franken-favored districts) were double-counted, then switched gears and attempted to prove that votes made by absentee ballot and formally rejected (mainly in Coleman-favored districts) were not counted at all, but now should be. Although the Franken team’s request to have the case dismissed has been denied twice, they have been consistent throughout the recount with the message that every vote counts.
On February 26, the judges ordered that 1,500 rejected absentee ballots be opened to look for voter registration cards. MN Deputy Secretary of State Jim Gelbmann has since reported that only 80 of the 1,500 contained the cards. Franken attorney Marc Elias said, “It’s not likely the 80 will yield 80 votes.” There are other reasons why those ballots might have been rejected, and even if all 80 registration cards had been filled out properly, the 80 votes are nowhere near what the Coleman camp was hoping for…or what they needed. As Coleman’s case largely hinges on rejected absentee ballots and the 1,500 were chosen by the Coleman team with the expectation that they would yield enough votes to overtake Franken’s 225-vote lead, this discovery does not bode well for Norm Coleman.
In closing arguments, Coleman attorney Joe Friedberg admitted that the Coleman team did not prove the required elements set forth by the three-judge panel to render the absentee ballots valid. He claimed that “the panel got [it] wrong.” Friedberg said the law requires him to prove only that ballots were “more likely than not” valid, not that they comply with the elements predetermined by the three-judge panel.
The idea that votes need only be more likely than not valid stands in direct opposition to the Coleman team strategy during the physical recount. During that time, Coleman observers and lawyers seemed to have little faith in Minnesotans’ ability to complete a valid ballot, grossly overreaching when challenging ballots that had been counted as votes for Franken. Friedberg’s closing summary statement seems to imply the opposite. He claims that the rules changed, but either the Coleman team believes it can confuse the judges by attempting to cast a pallor on Minnesota’s entire electoral process or, as Franken attorney Kevin Hamilton said, “their failure of proof is simply breathtaking.”
Once the panel renders its decision, it is possible (some say likely) that an appeal will be filed with the Minnesota State Supreme Court.