Litigation, Day 3

I'll publish sporadic updates throughout the day, and I'll finish it up by doing a thorough summary at the end of the day; just like I did yesterday.

9:18 AM CT: Mr. Gelbmann is still on the stand and is speaking to the issue of absentee voting registration; Mr. Friedberg is doing the questioning. During the sorting of wrongfully rejected absentee ballots, election officials created a category called 3a in which they examined the secrecy envelope to determine if there was a registration card within the absentee ballot envelope. If there was a registration within the envelope, that vote may have been validly cast, despite the lack of prior registration.

9:43 AM CT: Mr. Gelbmann is now talking about a specific absentee ballot that was rejected; the ballot was cast in Hubbard County. The ballot was apparently rejected because the voter used a hyphenated last name that was not on the voter roles. Upon closer inspection, election officials determined that the voter was registered and that their ballot was wrongfully rejected.

11:31 AM CT: Mr. Lillehaug, Franken's attorney, is cross examining Mr. Gelbmann, who is still on the stand. I believe he is discussing the issue of potentially double counted ballots. Mr. Lillehaug is essentially trying to establish that election officials did not intentionally double count ballots and that the MN Canvassing Board passed the issue to this Election Contest.

11:45 AM CT: Mr. Gelbmann was asked to identify a document sent by Coleman attorney Fritz Knaak to the Secretary of State's office. The document highlighted a disagreement between the campaigns regarding their position on whether wrongfully rejected absentee ballot envelopes are/were private or public data.

11:49 AM CT: Mr. Lillehaug probed further by asking whether the Secretary of State's office ever definitively took a stand on the public or private issue. Mr. Gelbmann stated that the SOS had expressed the opinion that the envelopes should be public data.

11:49 AM CT: There was another document presented to the Minnesota State Canvassing Board on November 18th which was supposed to clarify each campaign's position on the absentee ballot custody issue highlighted previously. Mr. Lillehaug asked if this was a big deal at the time and the witness responded, "yes." Mr. Gelbmann then went on to say that "the decision of the local election officials should be assumed to be correct."

1:20 PM CT: The court is in recess until 1:30 PM CT.

1:34 PM CT: The court has resumed. Mr. Gelbmann and Mr. Lillehaug are still discussing the email correspondence between the Coleman campaign and the Secretary of State's office. The current document in question was emailed by an associated of Tony Trimble to the SOS office on November 19th.

1:50 PM CT: The Fox affiliate in the Twin Cities area has reported that the ColemanForSenate website was down after an influx of "tens of thousands of page views" after a searchable database of "disenfranchised" voters was made available. As a comparison, this site received around a million page views during the week of November 4th. I'd be willing to bet that the math associated with our election projections caused a far higher amount of server load than searching a database. This is yet another example of the Coleman campaign's technological ineptitude.

1:55 PM CT: Mr. Gelbmann is still on the stand, and is taling questions regarding the process required to duplicate a ballot. One of the judges just asked how many ballots were duplicated in total; Mr. Gelbmann said he had no idea.

2:00 PM CT: This will apparently be the last question related to duplicate ballots. Mr. Lillehaug presented a document sent by Mr. Gelbmann to Mr. Poser relating to a Brooklyn Park precinct. The Brooklyn Park election officials found duplicate ballots marked in "eleven precincts," of which there was no corresponding original. They apparently found envelopes containing these original ballots during the recount. Brooklyn Park asked the SOS office for guidance. The Exhibit stated that the SOS office instructed Brooklyn Park to re-review ballots in these eleven precincts.

2:05 PM CT: In the case of any discrepancy, the procedure is to count the originals. At the time, the Coleman campaign did not object to these proceedings. The talks moved forward to the events of the November 26th Minnesota State Canvassing Board meeting. At the meeting they discussed the possibility of wrongfully rejected absentee ballots.

2:11 PM CT: The next document presented was written by Tony Trimble and addressed to Mr. Gelbmann on December 12th.

2:17 PM CT: Moving on, the next document is also from Tony Trimble and covers rejected absentee ballot sorting. Within the document, Mr. Trimble expressed concern that the SOS had suggested "non-partisan" workers instead of election officials who had received proper training. Mr. Gelbmann stated that "the justification of an election judge is within the precinct that they are assigned to." Mr. Lillehaug then asked if Tony Trimble's intention was to have the absentee ballot review take place on the precinct level. Mr. Gelbmann responded by saying that Mr. Trimble just wanted election judges to preside over the proceedings.

2:23 PM CT: Moving on to the next Exhibit; Exhibit F79. A letter from Fritz Knaak dated December 29th to county election officials regarding the opening of rejected absentee ballots. Mr. Gelbmann was not a direct recipient, but had knowledge of the document's existence. Exhibit F88 is next.

2:28 PM CT: This document relates to Minneapolis Ward 3 Precinct 1; the precinct where an envelope was missing and not found during the recount. The letter is dated December 11th 2008. There had been considerable sorting by the counties as of this letter's writing. Mr. Gelbmann had concluded on or before this day that ballots had been wrongfully rejected.

2:31 PM CT: Mr. Gelbmann then read the following quote from the exhibit; "Every ballot in the 5th pile was originally rejected, by county election officials or an absentee ballot board or 2 election judges and that these ballots should be deemed improperly rejected, after an ad-hoc statutory counting process that is not clear or undisputed."

2:37 PM CT: Mr. Gelbmann was "convinced" that he saw wrongfully rejected absentee ballots; he saw evidence of this fact.

2:41 PM CT: The court will eventually recess at a convenient point around 3 PM CT.

2:42 PM CT: Brooklyn Park was not the only jurisdiction with duplicity errors; Maplewood Precinct 6 was brought into the fray. Mr. Gelbmann first heard of the situation in Maplewood Precinct 6 through Minnesota Public Radio. Mr. Gelbmann then contacted a Ramsey County election official. He learned that a voting machine broke down on election night, and the resulting ballots were not counted until the recount. He stated that neither campaign raised any objection to these proceedings initially.

2:49 PM CT: Mr. Gelbmann then discussed his conversation with the Ramsey County election official, Joe Mansky. The ballots which were not counted on election night due to machine error were found in an auxiliary box within the ballot scanner during the recount. Mr. Mansky stated that they were not counted on election night.

2:51 PM CT: Mr. Gelbmann stated that the Coleman campaign did take issue with the inclusion of these 171 ballots in the final recount numbers. Mr. Gelbmann personally believed that "it was appropriate to include [the 171 ballots found in the auxiliary ballots] in the final recount numbers." When asked if he believed these balots to have previously been counted, Mr. Gelbmann reponded with "no;" he was then asked if fraud was involved, "absolutely not." There were ballots found in Becker County and they were counted. There were no complaints filled by the Coleman campaign regarding Becker County. Mr. Lillehaug then brought forth another, similar case in Scott County. Mr. Gelbmann stated that these ballots, in Scott counted were counted and that based upon his work in Mark Dayton's (D) campaign, Scott County typically voted Republican.

2:56 PM CT: Afternoon recess. The court will resume in fifteen minutes, but I will not. I'll provided a detailed summary of today's events later tonight in this article.

Summary [1:37 AM CT]: The day three proceedings actually started on time today, but before Mr. Gelbmann re-took the stand, the panel ruled on a motion put forth by the contestant Norm Coleman. Justice Kurt Marben stated that "it was a motion in limine to exclude evidence of each campaign's prior position regarding when and how absentee ballots should be reviewed. The panel has read the memorandum that has been received and are prepared to rule without further arguement." The motion was denied. Onto Mr. Gelbmann, again.

Before I move further ahead I want to point out two documents which have been posted on the election contest judicial page that may be of interest. The first document is a listing of exhibits provided by the Franken campaign and the second document details Coleman's exhibits.

The three judge panel is illustrated on the left side of the image below and a scene from the courtroom is depicted on the right. Mr. Friedberg, an attorney representing Coleman, is questioning Mr. Gelbmann, the Minnesota Deputy Secretary of State as Norm Coleman watches from the side.

Witnesses Day 3

Mr. Friedberg resumed his questioning of Mr. Gelbmann after adjourning yesterday evening. Mr. Gelbmann voted for Dean Barkley. The first phase of questions concerned the creation of a 3a pile during the sorting of wrongfully rejected absentee ballots. Mr. Gelbmann discussed the standing order to include any vote, rather than exclude, if a questionable problem had occurred. This related to the 3a pile because election officials were asked to bend and fold and analyze the absentee ballot secrecy envelopes to determine if a registration card may be enclosed. Mr. Gelbmann stated that it could have been very obvious based upon the style of paper used for the registration form. He said that some registration forms were printed on card stock and were easily identifiable from the outside of the envelope. He stated that envelopes which the election judge believed to contain a completed registration form was placed in pile 3a where they remain. Pile 3a was not included in the recount.

Mr. Friedberg then began to question Mr. Gelbmann on specific ballots which were rejected. He discussed the scenario by which originally rejected absentee ballots were reclaimed as valid votes. During the recount election officials were able to check a more comprehensive list of voter registration tables; for example, if a voter used a hyphenated name when they signed their ballot but they were registered using a non-hyphenated name their vote was likely rejected by the original election official. During the resorting, these errors were corrected. Mr. Friedberg posed several questions regarding specific absentee ballots that followed this pattern. Mr. Friedberg was trying to show that some ballots were tried differently than others, and thus their handling would violate the equal protection clause within the constitution.

Mr. Friedberg finished with Mr. Gelbmann and the cross examination began, as lead by Mr. Lillehaug. Mr. Lillehaug got Mr. Gelbmann to say that ballots were not intentionally counted twice; which is not a revelation. The conversation then shifted to the issue of ballot ownership. Mr. Lillehaug 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 topic then switched back to the issue of equal protection, Mr. Gelbmann stated in response to a question regarding the possibility of duplicate counting that "the decision of the local election officials should be assumed to be correct."

The lunch recess then took place until 1:30 PM CT.

Mr. Lillehaug resumed the tedious process of reviewing email correspondence between the various parties involved in the recount. Mr. Gelbmann discussed the circumstances required for a ballot to be duplicated. One of the judges then asked him how many total ballots were duplicated, Mr. Gelbmann stated that he had absolutely no idea. At this point you should go read the timestamps above beginning with 2:00 and concluding at 2:56 PM CT.

When the court resumed Mr. Gelbmann spoke about the issue of ballot security. If ballots are left unattended in an improper place and are found with broken seals, those ballot must be invalidated. This issue was raised because of the 32 ballots that were not counted on election day in Hennepin County, but were properly transported to the Minneapolis City Hall and counted later.

They next discussed the missing ballots from Minneapolis Ward 3 Precinct 1; I believe the Franken campaign is waiting for another witness before they dig into this issue. Mr. Gelbmann was not deeply involved in the situation around this Minneapolis precinct; I think Cindy Reichert, the Hennepin County Election Director, is the only person who can provide testimony, with enough weight to settle this issue, in one direction or another.

Now to cover the issue of the "fake" controversy associated with Norm's website. Norm's website was not intentionally taken down by anybody within the campaign. The site is run from a remote location. I have logically concluded that his site crashed for one of two reasons, (i) either an extreme amount of traffic, or (ii) poor coding resulting in a memory leak. If the site was getting hit with a decent amount of traffic, which does appear to be the case, the number of database connections may have exceeded the allowable limit due to poor coding. When this happens there is essentially nothing that can be done from a remote location. The server is inaccessible because the processor is always trying to catch up with the current number of requests. In order to fix the problem, the admin would need access to the server, but they could not gain access because the server was constantly busy. Their solution was to redirect traffic to the IP address They would have been wise to setup of an error page on another server and redirect to that, but I don't know the details.

Whenever the IP address is changed, the new address must propagate back through the internet; this can take up to 72 hours. To compensate for this delay, they changed the TTL to 600 for the IP address, which is a very small amount of time in this application. They wanted the dummy address to propagate to as many people as possible as fast as possible so that they could attempt to fix the original error. In changing the TTL they are able to gain access to the original server faster, without the new address propagating through the internet over the actual server address. In changing the address they made a calculated decision; one I would guess they currently regret.

When their old server came back online, each and every file they had hosted was available for download. There were documents available that would not have justified any publicity stunt. My guess is that somebody outside of the campaign initially discovered the outage and began to push the "excessive traffic from voter database leads to crash" story. At this point the story was picked up by and the Coleman was really left with really no choice but to propel the story. If they had actually acknowledged the problem, the news would have spread faster than they could have fixed; which happened anyway, but it took some time for people to figure out that files were available. I do not believe the initial crash was intentional, I believe it was a very poor implementation of technology that forced the Coleman campaign to run with the spin.

The trial will resume tomorrow at 9:00 AM CT.

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