MN Senate Litigation Recap, Week 1

Below is a recap of this past week's election contest proceedings; each day's events are detailed in 650 words or less:

Monday, January 26th
Complete Summary: Day 1

The first day of the trial began at 11 AM CT, and each side presented their very dry opening remarks. The proceedings progressed and the Coleman campaign called Kristen Fuzer, a "Political Director," to the stand. The witness spoke about two issues; the Coleman campaign's internal position regarding rejected absentee ballots and the process by which ballots were copied within the Coleman campaign. The witness repeatedly stated that she was "not a lawyer" and was not in attendance for legal meetings. One of the judges stated that her purpose, as a witness, was to "lay a foundation for the admissibility of the [ballot] copying issue." Ms. Fuzer stated, toward the end of her testimony, that it was possible for errors to have been made based upon the quantity of ballots that were reproduced.

Gloria Sonnet, a lawyer at the Minnesota firm Dorsey & Witney was then called to the stand. Gloria was apparently responsible for the compilation of a ballot table used by the Coleman campaign, and later presented as evidence in Exhibits C1 and C2. The Exhibits contained some 5,000 absentee ballots which were classified, by the Coleman campaign, as wrongfully rejected. The witness and a Coleman attorney began sorting through each ballot and verifying its classification; was it rejected because of a signature mismatch, was it marked as accepted but never counted, etc. The Franken campaign eventually objected to this process based upon the inherent errors within the Exhibits and the lack of prior documentation. The court eventually recessed, and ruled that the Coleman campaign would have to use the original ballots and that these original ballots would have to be subpoenaed from each of Minnesota's 87 counties.

Tuesday, January 27th
Complete Summary: Day 2

The second day of the trail was supposed to begin at 9 AM CT, but was delayed due to a private meeting regarding the logistics associated with the ballots presented in Exhibits C1 and C2 during yesterday's proceedings. The Coleman side, courtesy of Mr. Friedberg started by asking that Ms. Sonnen's prior testimony be stricken from the record; the Franken campaign objected, but only because they wanted to question the witness. The events proceeded, because Ms. Sonnen was not present, with the Coleman campaign eventually presenting six witnesses whose absentee ballots had been rejected. Each of these voters was notified by the Republican Party that their vote was not counted. The common theme amongst all six of these Coleman witnesses centered around the voter's claim of wrongful rejection, not necessarily the legality of each election judges rejection.

Jim Gelbmann, the Deputy Secretary of State, was designated by the Secretary of State's office after a subpoena request, and was then called to the stand by the Coleman campaign. While on the stand, Mr. Gelbmann initially discussed the circumstances under which wrongfully rejected absentee ballots were counted. The Coleman campaign was attempting to show that these ballots were not treated equally by each of Minnesota's 87 counties; if this discontinuity could be proven, it would illustrate a breach in the adherence of the equal protection clause within the US Constitution. Mr. Gelbmann was unable to provide any substantial evidence supporting the Coleman campaign's theory; instead Mr. Gelbmann stated that any specific inconsistencies would have to be addressed by the election worker who dealt with a specific ballot. Mr. Gelbmann then spent the last thirty minutes addressing specific situations for accepting and rejecting absentee ballots in various counties, and the various processes used by these counties. The day reached an end, but before the court adjourned the Franken campaign voiced a complaint regarding anomalies within new evidence submitted by the Coleman campaign; both campaigns agreed to review the documents for errors and defects.

Wednesday, January 28th
Complete Summary: Day 3

At 9 AM CT, Jim Gelbmann resumed his position on the witness stand, a position he would occupy for the remainder of the day. In the morning session Mr. Gelbmann's testimony encompassed a variety of subjects relating to rejected absentee ballots. Mr. Gelbmann stated that election officials created a 3a pile in which they examined the secrecy envelope to determine if there was a registration card within the absentee ballot envelope; this determination was done by any means necessary without physically opening the envelope. If there was a registration within the envelope, that vote may have been validly cast, despite the lack of prior registration. Mr. Gelbmann discussed the scenario by which originally rejected absentee ballots were reclaimed as valid votes while Mr. Friedberg presented specific examples.

During the cross examination, Mr. Gelbmann was on the record stating that ballots were not intentionally counted twice. Mr. Lillehaug then referenced several documents which facilitated further discussion on the topic. Mr. Gelbmann established that there was a disagreement between the campaigns on the subject of ballot ownership; the Coleman campaign believed that the secrecy envelopes were private data, while the Franken campaign believed they should be made public. Mr. Gelbmann went on to say that the Secretary of State's office eventually sided with the Franken position. The morning session concluded with Mr. Gelbmann stating that "the decision of the local election officials should be assumed to be correct."

After the lunch intermission, Mr. Lillehaug resumed the tedious process of reviewing email correspondence between the various parties involved in the recount. The documents pertained to ballot duplication; as such Mr. Gelbmann discussed the circumstances required for a ballot to be duplicated. Mr. Lillehaug then referenced a letter written by Mr. Gelbmann regarding missing duplicates in eleven Brooklyn Park precincts. Through Mr. Lillehaug questioning, Mr Gelbmann asserted that it was proper, under Minnesota statue, to count the original ballots in the case of any discrepancies. Mr. Lillehaug then referenced Minneapolis Ward 3 Precinct 1 and Maplewood Precinct 6 in relation to Mr. Gelbmann's prior assertion; the Coleman campaign asserted that "found" ballots in these two precincts lead to counting errors. Mr. Lillehaug then presented two other examples of "found" ballots; Mr. Gelbmann stated that this second set of "found" ballots occurred in Republican leaning area's and that the Coleman campaign made no objections to there inclusion.

Thrusday, January 29th
Complete Summary: Day 4

Mr. Gelbmann reclaimed his position at the witness stand around 9:04 AM CT, after a brief discussion at the bench, and Mr. Lillehaug continued his line of questioning. They first discussed the state funded training provided to each election auditor and election official. This related to the re-review of rejected absentee ballots; Mr. Gelbmann stated that during the reexamination of rejected absentee ballots, the election officials were not supposed to rely upon the reason presented on the secrecy envelope. The process by which rejected absentee ballots were designated and counted as wrongfully rejected absentee ballots was then discussed. Mr. Gelbmann talked about the 1,394 absentee ballots presented to the State Canvassing and the 654 rejected absentee ballots that were eventually presented by the Coleman campaign. Mr. Lillehaug then lead a discussion on the specific processes employed by each county when submitting wrongfully rejected absentee ballots; Mr. Lillehaug presented several examples from Yellow Medicine and Itasca County. Mr. Gelbmann briefly discussed the process for challenging ballots before reading the State Canvassing board's certified recount result; after which, a recess took place.

Upon resumption, Mr. Friedberg, a Coleman attorney began his questioning. Mr. Friedberg first tried to correlate the increase in absentee ballots submitted and the number of errors in the sorting and eventual counting of these ballots. Mr. Gelbmann then discussed the procedure required to duplicate a ballot; two election judges must be present, from differing political parties. One judge reviews the original ballot while directing the other judge, who is manually creating a duplicate from a blank ballot. The chain of custody was then discussed with regard to several precincts, specifically Maplewood Precinct 6; at this juncture the Coleman campaign moved to dismiss their own claim regarding Maplewood Precinct 6. The conversation was then redirected back toward the topic of wrongfully rejected absentee ballots, specifically with regard to the 401 ballots which were identified by election officials as wrongfully rejected absentee ballots, but never counted.

After lunch, the court decided to postpone Mr. Gelbmann's testimony until the Coleman campaign presented two other witnesses whose absentee ballots were rejected; again these voters were contacted by the Republican Party. The first witness signed his ballot through the use of a computer, and as such his signatures were noted as not matching. The second witness completed his ballot at Hastings City Hall in front of an election official. In both cases, the Franken campaign asked the witnesses if they had any personnel knowledge relating to whether their voters were or were not counted; in both cases the witness said they had no knowledge, outside of what the Republican Party had told them. They both believed that their vote should be counted.

Mr. Gelbmann then went back to the stand and discussed some of the events presented by the two prior witnesses. Mr. Friedberg then resumed the practice of allowing the witness to read a document before subsequently providing additional information relative to their experience. Mr. Gelbmann then discussed a Minnesota law which allows voters who have already voted by absentee to cast another ballot, in person on election day; only the ballot cast on election day counts. Mr. Gelbmann then discussed Minnesota law relative to deceased voters. Mr. Friedberg concluded his questioning, and Mr. Lillehaug asked Mr. Gelbmann to address the number of challenges put forth by each campaign and the number that were actually presented to the State Canvassing board. Mr. Gelbmann's three day marathon then ended.

Joe Mansky, the Ramsey County Election Director was then called to the stand by the Coleman campaign. John Rock, a previously unheard of Coleman attorney, essentially sought to establish Mr. Mansky's position as an election expert with years of experience. He spoke about election day registration and the incidents that are subsequently filed by some precincts. He also spoke about the various mechanisms by which these errors were reported. Mr. Mansky then discussed, for the remainder of the day, the process by which election officials process and verify voter registrations.

Friday, January 30th
Complete Summary: Day 5

The fifth day of the trial began with Mr. Mansky at the witness stand. Mr. Rock led Mr. Mansky through a discussion on inactive and active voters and their relevance to absentee voting; inactive voters must essentially re-register in order to vote. Mr. Mansky then articulated a multitude of legal ways by which a person could obtain a ballot and vote. The conversation then looped back to absentee voting. Mr. Mansky stated that there are two separate absentee ballots; one for registered voters, and one for unregistered or inactive voters. Mr. Mansky eventually discussed the procedures in place for alerting absentee voters of an error. The error must be found more than five days from the election in order for the voter to be notified. On a side note, I voted absentee for the primary and was notified of a witness hyphenation error; they promptly sent me another ballot and my witness corrected the error. Mr. Mansky then laid out the process by which absentee ballots are examined and eventually counted; Mr. Mansky stated that the resources simply do not exist, in both time and man power, to investigate each ballot beyond its face value.

Mr. Rock then directed Mr. Mansky to discuss inherent errors within the counting system, Mr. Mansky responded by stating that election officials are instructed to err on the side of enfranchising voters. Mr. Mansky later went on to list the rejection rate of absentee ballots in Ramsey County; roughly 5% out of a little less than 31,000 cast. Mr. Rock then asked if any rejected absentee ballots should still be counted; Mr. Mansky replied by saying that "a small group" of absentee ballots, no less than 61, which remain rejected qualify to be counted.

The format of the questioning then shifted; Mr. Rock preceded to present several exhibits containing rejected absentee ballots. Mr. Mansky was then instructed to review each return envelope and registration form contained within each Exhibit, there were probably about 20 ballots total, and determine the reason for rejection. In some cases the ballot was originally rejected, and forgotten, in others it was marked accepted but never counted and in other cases the ballot was placed in the pile of 954 ballots which were deemed to have been wrongfully rejected. Mr. Mansky stated that several of the ballot which were never counted in any capacity should have been counted due to an error made by an election official. Mr. Rock then presented a hypothetical situation to demonstrate the possibility of double counting; there were 110 votes and 100 voters. Based upon Mr. Rock's scenario, Mr. Mansky agreed that double counting was a possibility. Mr. Rock concluded his questioning of Mr. Mansky; Mr. Hamilton stated that his cross examination would take "two to three" hours; Mr. Mansky's testimony will resume on Monday.

The next issue the court took heard related to two separate petitions; one filed by 61 voters and represented by Charlie Nauen and the other by 7 voters and represented by Bruce D. Kennedy. The 68 voters are seeking to have their rejected ballots counted. Mr. Nauen spoke first and went on to say that Mr. Mansky just stated that two ballots from Ramsey County belonging to his group of 61 petitioners should have had their votes included in the wrongfully rejected absentee ballot pile. A group of state attorneys and judges then addressed the three judge panel with respect to the previous petitions. Bruce D. Kennedy then addressed the court; Mr. Kennedy put forth the grounds under which the intervention was presented to the court. After Mr. Kennedy concluded, Mr. Langdon, a Coleman attorney, stated that he also believes that these 68 ballots should be counted. He stated that their are other voters with similar claims that deserve to have their votes counted. Marc Elias then took issue with the intervention process and the court took the issue under advisement.

Monday, February 2nd
Week 1 Auxiliary

Over the course of the last week there were seventeen documents released by the court; the most important order is detailed below:

The Court being fully advised concludes that it is appropriate to dismiss Contestants' Maplewood Precinct 6 Claim and St. Paul Ward 3, Precinct 9 Claim.

Therefore, it is hereby ORDERED that Contestants' Maplewood Precinct 6 Claim and St. Paul Ward 3. Precinct 9 Claim be, and hereby are, DISMISSED WITH PREJUDICE. Costs, if any will be addressed at a later date.

Dated: January 30, 2009.

Source: [PDF]

The Coleman campaign gave up on excluding some 199 anomalous votes that favored Franken by roughly 53; these precincts were listed in Coleman's original election contest. The only remaining precinct with potential custody issues is Minneapolis Ward 3 Precinct 1; it seems probable that Cindy Reichert, the Hennepin County Election Director, is the only person who can provide testimony with enough weight to settle this issue, one way or another. She will be called to the stand, the question just remains, when?

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1 Response(s) to MN Senate Litigation Recap, Week 1

2/3/2009 12:33:00 AM CT

Hamilton cross of Mansky was brilliant. In addition to showing many improperly rejected absentees that were not counted but for frivolous objections of the Coleman people, he also elicited that Mansky sent an email to Lillehaug refusing to count any of the additional Franken identified improperly rejected ballots including the two ballots that even Mansky thought were improperly rejected and that Mansky did so on the advice of County Counsel. Can we guess this was Republican advice?

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