Days 2 & 3 at the Senate Election Contest in MN

While former radio talk show host and author Al Franken is consistently described in corporate media reports as "comedian Al Franken," it seems it's the legal team of former Senator Norm Coleman who are providing the laughs in the first days of the U.S. Senate election contest up in Minnesota.

When even the unapologetic, rightwing, "Franken is stealing the election!" nutcases and conspiracy theorists at Powerline describe Coleman's legal case as being of "Three Stooges quality," you know these guys must really be falling apart.

Such seems the case again on yesterday's Day 2 of the trial, following the disastrous Day 1 when the 3-judge panel tossed out doctored evidence, as submitted by Coleman's team. Today's Day 3 doesn't seem to be going much better for them, either.

Yesterday, two of the six voter/witnesses called by Coleman, to testify how they were disenfranchised when their absentee ballots were rejected, actually admitted that their ballots were properly tossed because they were, in some way, incorrectly --- or even fraudulently --- cast...

The Uncounted

TPM's excellent on-the-scene coverage from Eric Kleefeld describes the comedy of errors on the stand yesterday:

One of the voters was Douglas Thompson, who admitted under oath that his girlfriend filled out his absentee ballot application for him, signing his name with her own hand and purporting to be himself. His ballot was rejected because the signature on his ballot envelope (his own) did not match the signature on the application (his girlfriend's). The Coleman team's argument appears to be that he is still a legal voter in Minnesota, as the signature on the ballot was his own, even if admitted dishonesty was involved in getting the ballot.

Keep in mind: Thompson's story came up during the direct examination by Coleman lawyer James Langdon. So the Coleman camp fully knew this information and decided to make him into a witness.

Another one of the voters, an older man named Wesley Briest, initially responded that he voted at the polls --- not by absentee. Then Coleman attorney James Langdon showed him his absentee ballot envelope, reminding him that he did not go to the polls, too.

So one of the six voters called by Coleman to testify admitted his ballot should have been rejected, since his signature was forged by his girlfriend, while the another couldn't remember whether he'd voted at the polls or via absentee. Nyuk, nyuk, nyuk, wheeee! Doink!

The latter voter went on to admit, under cross, that "his wife, who served as the witness on his ballot, did not fully complete the witness section of the absentee ballot." So yup, that would disqualify the ballot, according to the rule of law.

Now we've made the case in the past that absentee ballots are rejected too easily, everywhere, particularly in the cases where signatures are thought to be mismatches from the voter's registration form. We concurred with San Diego election attorney Ken Karan, who wrote via email following the questionable rejection of ballots in a contested election in CA that "It should not be as simple to discard a ballot because the signatures don't match after a subjective comparison of signatures by people without any recognized expertise in the recognition of handwriting."

"Furthermore, if the signatures don't match," Karan added, "then that should mean that someone is trying to vote someone else's ballot. Now, that is voter fraud. Every questionable ballot should either be verified with the voter whose registration signature is at issue, or it should be the subject of a criminal prosecution."

A case in point is that of 75-year-old Gerald Anderson, one of the witnesses also presented by Coleman. In Anderson's case, he is "a septuagenarian who says his signature on the ballot envelope didn't look right because he is now too blind to fill things out perfectly," according to Kleefeld.

"Perhaps my signature is not quite as good as it once was," the Star-Tribune reported Anderson saying on the stand. "Things have changed a little bit."

"My vote's worth nothing anymore. Maybe I'm worth nothing --- I don't know," he continued. "I'm entitled to my vote."

It's outrageous that a voter like Anderson should not have his ballot counted, yet it's unlikely that his case is particularly unusual. Indeed, the Strib notes a couple of the other witnesses had similar stories. We've noted ourselves previously, that, due to a persistent "blogging injury" that has left our right wrist in a splint for months, it's quite likely that our own signature today wouldn't match that on file from our voter registration form as filled out years ago.

So Coleman's arguments about the rejection of such ballots might otherwise be valid, but for the fact that he spent the bulk of the pre-contest, post-election hand-count period --- when he believed he was winning --- arguing to reject thousands of the very same ballots that he's now arguing should be included...now that the state canvassing board has certified the results giving Franken a 225 vote victory out of some 2.9 million ballots cast last November.

That Was Then, This is Now

During a press briefing, Coleman's attorney Ben Ginsberg (yes, that Ben Ginsberg, of Bush v. Gore FL-2000 fame, the one who built the strategy of fighting to not have votes counted), admitted "Both campaigns have taken positions in the past that are not entirely consistent with what they are now. That is frankly irrelevant."

No, it's not, Ben. As Franken's attorneys were all too happy to point out in today's proceedings. The Franken team's arguments, as summarized by Kleefeld:

• Coleman's attorneys previously maintained that ballot rejections carry a presumption of regularity by the local officials. They now argue that every ballot is entitled to a de novo review, independent of what the local official thought.

• They said that the Equal Protection Clause did not mandate a review of absentee ballots. They are now arguing that wrongful rejection, and any administrative variations across the state, violate Equal Protection.

• They previously argued that including previously-rejected absentee ballots would violate Equal Protection, by watering down the votes of people who filled out their documents correctly or voted at the polls. They are now saying that minor errors in ballot forms should be forgiven.

• They argued that absentee-voting is a legal privilege, and not a right, and therefore not entitled to an extra benefit of the doubt for ambiguous envelopes. In Coleman attorney Joe Friedberg's opening arguments this past Monday, he said that the privilege/right question carried no meaningful legal distinction.

So while the Coleman team spent the bulk of the hand-count period arguing to not count ballots, their change of heart --- and leading PR line, that all votes should be counted, even if they aren't 100% legal --- isn't terribly moving.

"You know there's been so much discussion about process, but today we saw the human side of this, and that's what this is really about," Coleman told the media yesterday, after his disastrous witnesses. "For me it was heartwarming to be here to see Minnesotans come forward and be so passionate, so passionate, about the right to vote and be counted."

We may need a bucket, if this trial goes on much longer. (Along those lines, see Coleman's Every-vote-should-be-counted Democracy Fest with fellow convert Sean Hannity from last night Hannity right here. If you've got a strong stomach, anyway.)

Blame the Supremes

It should be noted here that the opening for this entire argument about counting/not-counting absentee ballots was created by the MN Supreme Court themselves when they made, last month, the single worst decision during an otherwise quite orderly, transparent, and by-the-books post-election process. After MN SoS Mark Ritchie had, appropriately, given strict, standardized orders for all counties to go back and review all rejected absentee ballots to make sure they were properly rejected, as per state law, the court responded to a challenge from Coleman's team by ordering that the SoS, as well as both campaigns, had to agree on which improperly rejected ballots would be counted.

That terrible --- seemingly unprecedented --- decision by the court, allowing campaigns to decide which ballots would and wouldn't be counted, shamefully opened the door to this entire brouhaha. For the record, following that decision, Franken called for all such improperly rejected ballots to be counted, Coleman was allowed veto power over most of them...which he now wants counted.

Indeed, four of the six witnesses Coleman called to the stand yesterday, Franken's team contended, were not even among those whose ballots Coleman had originally wanted counted, following the MN Supremes terrible decision allowing the campaigns to decide what would be counted and what wouldn't.

The Old 'Equal Protection' Ploy

Finally, the Coleman team's fallback legal argument (one illustrated in the Coleman/Hannity interview linked above) goes back to Ginsberg's old tried and true, cynical, desperate --- yet, ultimately effective --- FL-2000 Bush v. Gore "Equal Protection" argument. That argument, it should be noted, is valid only for Republicans, by the way, and only on an as-needed (such as when you'll likely go all the way to a Supreme Court which bought into it last time) basis.

Keefeld summarizes the strategy nicely:

The focus of the Coleman team's case is not simply human error but human variation --- that is, the recount rules may have been uniform statewide, but the human beings administering the rules applied them differently --- and this constitutes a violation of the Constitution's guarantee of equal protection.

For example, an absentee ballot might be rejected as having a bad signature or wrong information about the voter --- but it's really a matter of sloppy handwriting that an election official in one corner of the state would recognize and let slide, while someone elsewhere wouldn't let it pass.

What a mess. But but to paraphrase the favorite chant of later-day street protesters: This is what democracy --- mixed with cynical gamesmanship and partisan desperation --- looks like.

ENDS

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