Posted: January 26, 2009

MN Senate race - Day 1 of the trial complete

The trial of the Minnesota U.S. Senate election contest began today. Each side gave lengthy opening arguments. Coleman’s attorney began and emphasized in his statement that the absentee ballots were by far the biggest issue and it will likely be dispositive. He only briefly addressed the original/duplicate and missing ballot issues. Franken’s attorney refuted the Coleman camp’s assertion that Minnesota officials had violated the rule of Bush v. Gore by treating absentee ballots in a non-uniform manner from county to county. He characterized the case as requiring “some assurance that the rudimentary requirements of fundamental fairness are satisfied”. Coleman’s first witness was the political director for his campaign. Franken’s attorney questioned her about copying errors made in Coleman filings that include absentee ballot envelopes. The day ended with the 3-judge panel interrupting the testimony of Coleman’s second witness so they could discuss Coleman’s plan to have ballots provisionally accepted by the court based on the photocopies of the ballots. The court sustained an objection by Franken attorney Marc Elias which cited the best evidence rule in seeking to stop the admission of evidence in this manner. The court denied a motion by Coleman last week to order the counties to deliver all rejected absentee ballots to the court but, today it determined that the Coleman campaign must obtain a fresh copy of the ballot envelopes from local officials. In a press conference outside the court, Coleman’s attorney indicated that copies of all 12,000 rejected absentee ballots will now need to be delivered to the court. It is unclear how much time the Coleman camp will be allowed to gather these documents. Franken has made a motion in limine to limit consideration of rejected absentee ballots to the 654 that Coleman mentioned in his notice of contest. See the motion here and Coleman’s response opposing the motion here. See the Coleman v. Franken case page here. Throughout the proceedings and in statements to the press today, Coleman and his team said that they seek to have all votes counted but only once. Franken’s team, on the other hand, said that Coleman was the one who originally wanted to keep the wrongly rejected absentee ballots out of the recount. Coleman’s position now appears to be that absentee voting is a right and not a privilege and that technical errors should not keep a ballot from being counted. This is similar to Democrat Mary Jo Kilroy’s argument in the Skaggs case over the counting of provisional ballots in the OH-15 Congressional race. See the Star Tribune coverage here.