Litigation, Day 4

I'm just catching the tail end of today's proceedings, but I'll post a summary later tonight:

4:24 PM CT: The Coleman campaign had called Joe Mansky, the Director of Election for Ramsey County, to the stand and some point during the day. John Rock, of the Coleman campaign, is currently questioning the witness.

4:28 PM CT: Joe Mansky just explained why some voter registrations are listed as November 5th. Any voter who filed a registration form within 20 days of the election is set aside and filled on the day after the election. The state suggests that such voters should register on election day when they vote in person.

4:30 PM CT: The court will recess until tomorrow, and the three judge panel would like to meet with the trial attorneys, from both sides, to discuss scheduling.

Summary [9:26 PM CT]: The court rejoined this morning, but before anything actually happened, a private discussion (although still in courtroom) was conducted between the attorneys and the three judge panel on "two preliminary manners". The meeting lasted for about four minutes; I have no idea what was discussed. The attention then turned back to the witness Mr. Gelbmann [1], for the third consecutive day.

Witnesses Day 4

Franken attorney Mr. Lillehaug captained the questioning by reviewing some testimony from yesterday regarding how the SOS and State Canvassing board were to count wrongfully rejected absentee ballots. Mr. Gelbmann then reaffirmed that state election auditors did receive training in all 87 counties, two days of training; the auditors then train election officials at each of Minnesota's "4128 polling places". Each election official receives two hours of training and the lead official receives either "three or five" hours of training; Mr. Gelbmann was uncertain.

Mr. Gelbmann then talked about the inherent differences present at each training session across Minnesota. He referenced police training for identifying a drunk driver. The official training guide explicitly details the procedure for including, or excluding an absentee ballot. Mr. Gelbmann sated the we encourage our officials to "error on the side of allowing the vote;" he also stated that veteran election officials do a better job of identifying voters who may have a disability that impedes their handwriting ability.

During the reexamination of rejected absentee ballots, the election officials were not supposed to rely upon the reason presented on the secrecy envelope; specifically if the reason was "not registered." If the reason was not registered, the local election officials were supposed to verify this conclusion. Mr. Gelbmann then verified that the local election officials had performed the due diligence required to include additional absentee ballots; he thought the process was "exceedingly thorough."

There was a bit on confusion regarding a document which had been three hole punched through some of the text. Mr. Gelbmann explained that the SOS would have had to redraft and absentee ballot counting plan had the "relief" not been provided by the MN Supreme Court.

Mr. Gelbmann established that the Coleman campaign agreed to "133" of the 1,346 wrongfully rejected absentee ballots proposed by the counties. At this point Mr. Lillehaug began introducing evidence and asking Mr. Gelbmann to identify the documents and provide some auxiliary information. The documents involved various different counties' procedures for handling absentee ballots that were requested for review; Mr. Gelbmann called the documents "email strings." They committed most of their time on this issue to Yellow Medicine County, which had "expressed concern" over the taxpayer expense associated with the request for review. They also focused on seven ballots in Itasca County.

The presentation of "email strings" continued as the conversation shifted from county to county, vote by vote. Mr. Lillehaug was simply establishing that the evidence presented within the exhibits is infact accurate based upon Mr. Gelbmann's recollection and his position within the vote counting process. Mr. Gelbmann discussed the reason why each presented ballot was originally rejected and offered further procedural rules on a case by case basis.

Mr. Gelbmann then read a quote referencing the Coleman campaigns request to include an additional 654 rejected absentee ballots based upon copies of "the envelopes furnished by the counties." Mr. Gelbmann then discussed the establishment and enforcement of the 10 AM deadline for the submission of rejected absentee ballots which were believed to be erroneously excluded from the count. He went on to say the the Coleman campaign did not meet this deadline with respect to the aforementioned 654 ballots. The 654 ballots were apparently presented at 3:08 PM, roughly 5 hours after the specified deadline on December 29th.

Mr. Gelbmann reviewed "some" of the 654 ballots out of pure curiosity and was able to discern a pattern for their selection; unfortunately for Mr. Lillehaug, the Coleman campaign objected, and question remained unanswered.

Mr. Lillehaug returned to the Franken side, and Coleman attorney Mr. Friedberg interjected an was granted the ability to question Mr. Gelbmann regarding the term "cherry picked." Mr. Friedberg established that Mr. Gelbmann worked for Sen. Mark Dayton (D) and was apprised of the internal happenings of political campaigns. Mr. Friedberg then tried to establish a definition of "cherry picked" based upon Mr. Gelbmann's testimony and passed work. His line of questioning was rejected by the judge and Mr. Lillehaug resumed the floor.

Mr. Gelbmann was then asked to briefly describe the process of challenging ballots during the recount. The election official designated or "called" a ballot for a given candidate and then that decision became challengeable by two representatives from each participating party. Mr. Lillehaug then asked Mr. Gelbmann to read off the number of votes received by each candidate in the Minnesota State Canvassing Board's recount result; the vote total showed that Coleman recieved 1,212,206 votes an Franken received 1,212,431. Mr. Lillehaug then stated that he had no further question for Mr. Gelbmann; a fifteen minute recess was declared.

After about 25 minutes the court resumed with Mr. Gelbmann still at the witness stand. I believe Mr. Friedberg took over questioning for the Coleman side. Mr. Friedberg first established through questioning that there was not yet a winner; the process was currently within the election contest phase, as specified by Minnesota law. They the discussed election official training; apparently the SOS office produces a training video but Mr. Gelbmann unsure if that was legally allowed to count for the two hours of required training.

The discussion then turned to voter turnout; Mr. Gelbmann stated there were approximately twice as many absentee ballots during the 2008 election when compared to 2006 elections. Mr. Friedberg is attempting to illustrate that the election officials were not properly trained to handle the increase in absentee voting. Mr. Gelbmann stated that the election auditors, the professionals above election officials, were required to attend "breakout" sessions; one of the "breakout" sessions was two hours long and covered the issue of absentee ballots. Mr. Gelbmann recalled a noticeable increase in the number of absentee ballots cast in Hennepin and "to a lesser extent" Ramsey County over last election; he could not recall this phenomenon happening in other counties because he was not as involved in other counties.

The discussion then moved to Rule 9; the conclusion by the State Canvassing Board to use the original ballots to determine the intent of the voter. Mr. Gelbmann was eventually asked to open the state issued election official training guide; he was asked to turn to § 14.2 which covers ballot duplication for the purpose of feeding a damaged ballot through the optical scanner. Mr. Friedberg referenced nine directions within the manual; his main point was that at least two separate judges with separate party affiliations must be present at the time of duplication; party status is dependent upon receiving at least 5% of the vote in the previous election. The election judges are supposed to mark the duplicate with the reason for duplication.

The ballots are not mechanically duplicated; one election official dictates who the given voter voted for and the other election official fills in the votes on another, blank ballot. They then verify that the duplicate conveys the voter's intent, as depicted on the original according to Minnesota law. Mr. Gelbmann stated that "95% of ballots were duplicated after the polls closed."

Mr. Gelbmann was then asked to address the discrepancy the number of original ballots and duplicates during the recount. He could not specify the exact county, but he stated that the first incident occurred on November 19th, the first day of the recount. Gary Poser was contacted about the issue. Mr. Gelbmann stated that if the duplicates were not marked, it would have been impossible to distinguish them from an original ballot. Mr. Friedberg then tried to establish a probable scenario in which the process of duplication and the ensuring counting mechanism may have created errors. Mr. Gelbmann presented the possibility of a voter not signing in on election day as another explanation to explain a discrepancy between the number of voters and the number of votes.

A brief, private meeting (still within the courtroom) was held between the attorneys and the judges as a result of a questioned posed by Mr. Friedberg regarding his double counting scenario. The question was eventually withdrawn. The SOS presented a process that was approved by both the Coleman campaign and the Franken campaign that was designed to handle the issue of Mr. Friedberg's double counting scenario.

The topic then moved to the chain of custody associated with each ballot. Mr. Gelbmann stated that any concern regarding the chain of custody could ultimately be heard in an election contest if the precinct or county or Minnesota State Canvassing Board did not satisfactorily resolve the issue.

Mr. Friedberg then transitioned away from the double counting issue to the 171 ballots that were left in an optical scanner in Maplewood P6. Mr. Gelbmann stated that the chain of custody regarding these ballots was upheld, Mr. Mansky of Ramsey County agreed.

An important event then occurred, Mr. Friedberg stated the following to the three judge panel:

Mr. Friedberg: If it pleases the court, we have had a challenge to those 171 votes; we are convinced that the integrity of the chain of custody has been protected and we withdraw our challenge to those Maplewood votes.

Source: via Mogulus at 2:32:30

The Coleman campaign just conceded a 37 vote Franken gain amongst these 171 ballots from Maplewood P6; based upon our previous work Coleman must now overcome a best case scenario deficit of 106 votes. The Franken campaign did not object.

The Coleman campaign is not however conceding the issue that have arisen from Minneapolis Ward 3 Precinct 1. Mr. Gelbmann discussed a plastic bag that was found in the precinct that contained ten to twelve absentee ballots; he was not sure whether these ballots were eventually counted, but he believed they were. A note was attached to this bag stating that the particular election judge did not know what to do with these ballots. Mr. Gelbmann was not specifically involved in the search for the 133 missing ballots, he only had a passive involvement and would have to base any answer on "here say". The voter intent of these 133 ballots cannot be determined, other than the election night result, because the ballots are currently lost.

Mr. Friedberg then questioned on the grounds of the chain of custody of these lost ballots, stating that "this is the ultimate chain of custody problem isn't it?" Mr. Gelbmann responded by saying that "[he] was not legally qualified to answer this question," and would like legal council if the current line of questioning is to continue. When the SOS was in need of legal advice, they asked the Minnesota Attorney General for guidance.

Mr. Friedberg then switched gears and asked if the three judge panel would like to recess before a "different area" is covered. He began by recalling an exhibit presented by Franken before settling on Coleman-265. This exhibit was an email sent by Mr. Lillehaug to the Secretary of State's office entitled "Cover Letter, Memorandum and Declarations" and was received on November 17th by Mr. Gelbmann office. One of the attachments contains a memorandum from the Al Franken for Senate campaign regarding rejected absentee ballots. Mr. Friedberg then read a series of passages from the memorandum and then asked Mr. Gelbmann if he read correctly. The quoted passages focused on the issue of equal protection in regard to absentee ballots and those which were wrongfully rejected.

Mr. Gelbmann was then asked about the documentation associated with the 401 wrongfully rejected absentee ballots which were identified by the local officials but were not agreed to by both campaigns, these votes were not counted. There is no information regarding which campaign rejected which ballots. At this point only the Coleman and Franken campaigns were involved; it was then learned that Independence Party candidate Dean Barkley was initially invited to recount proceedings, but declined to participate.

Mr. Friedberg continued to read through the memorandum, as written by the Franken campaign:

Mr. Friedberg: Going down a little bit further in Mr. Franken's position, back then, post election statutory provisions that address such issues as the timing of election official's actions are generally directory and not mandatory. Procedural rules cannot override the principle that all validly cast ballots must be counted to reveal the electorate's true vote and the expression of its will. Skipping the citation. Quote, to rule otherwise, the court has recognized, would require the loser to become the winner in spite of the vote of the people. Did I read that accurately?

Mr. Gelbmann: You read it accurately.

Source: via Mogulus at 3:05:52

Mr. Friedberg then continued to read through the exhibit and the contained text pertaining to absentee ballot inclusion after previous rejection. Mr. Friedberg then got "tired" and asked Mr. Gelbmann to read the next passage on equal protection as it pertains to absentee ballots. Mr. Gelbmann state that it "was not the role the State Canvassing Board to count these absentee ballots;" he stated that an election contest would be the appropriate medium for counting absentee ballots. Mr. Friedberg exhausted his questions relating to the current exhibit and the court recessed for lunch.

When the trial resumed, Mr. Gelbmann was still on the stand, but the panel allowed Mr. Langdon (Coleman) to field another witness. Peter Robert DeMuth [2] was called to the stand. He lives in Fargo as a student; his permanent address in in Plymouth, Minnesota. Mr. Friedberg handled the questioning. Much like the previous civilian witness he was presented with his absentee ballot and his registration form. He received a phone call from the Republican Partynotifying him that his vote was not counted. He stated that he voted absentee because he could did not want to travel to vote on election day. He drover from Fargo this morning to appear in court today. He filled out his registration form on a computer and emailed it to the election office; he initialed on the signature line using a mouse instead of physically signing the document.

Mr. Hamilton to cross examine the witness; he began by establishing the conversation when the Republican Party called. The Republican party asked him he supported Norm Coleman, and Mr. DeMuth responded "yes." The Coleman campaign also wrote the affidavit which Mr. DeMuth signed. Mr. DeMuth used a mouse to initial his name on the registration form because he did not have a printer and it cost money to print and scan at his College. Mr. Hamilton ended his questioning.

Mr. Langdon again questioned the witness. He established that emailing the registration was a valid option presented by election officials and that as far as Mr. DeMuth knew, his parents were not contacted regarding his absentee ballots submission. Mr. Langdon stepped down and the floor went back to Mr. Hamilton.

Mr. Hamilton establish that the witness was physically able to sign his name, he simple choose to do it on a computer. The witness was then dismissed.

Mr. Langdon then called another witness; James D. Wadzinski [3]. He lives in Hastings, Minnesota and verified his address as listed on his voter registration. He went to Hastings City Hall and cast an absentee ballot in front of an election official. Mr. Langdon basically established that Mr. Wadzinski wants his vote counted and does not know why it was not counted.

Mr. Hamilton on the cross examination; Mr. Wadzinski was not absent from the precinct on election day and he had no personal knowledge as to whether his vote was counted or not. The witness was excused.

Mr. Gelbmann went back to the stand and the questioning continued from Mr. Friedberg. They discussed the testimony of Mr. DeMuth with respect the computer generated signature. Mr. Friedberg established that the first signature presented by any individual should be assumed to be valid; the first signature is used for comparison of subsequent signatures.

Mr. Friedberg then resumed the practice of allowing the witness to read a document and then subsequently provide additional information relative to their experience. The next line of questioning focused on placing absentee ballots into two piles based upon the "face of the lists," either erroneously rejected, or not. When using the "face of the envelope, the previous task was not possible. Mr. Friedberg then questioned Mr. Gelbmann regarding the possibility having accepted absentee ballots rejected. There is a statute within Minnesota law that allows a voter to vote in person even though they have completed an absentee ballot; the absentee ballot will be discarded.

Mr. Friedberg then discussed the counting of deceased voters; Mr. Gelbmann stated that dead people's votes are not counted, but they do not check the obituaries. If a ballot is present, the election official assumes the voter is alive, unless they know otherwise. Mr. Friedberg then read a passage written by the Coleman campaign suggesting that rejected absentee ballots should be litigated during an election contest.

Mr. Lillehaug began the cross examination. Mr. Lillehaug established the number of votes cast and the number of challenges; there were 6,500 initial challenges and about 1,000 ballots were actually examined by the Minnesota State Canvassing board. The MN Attorney General was consulted with regard to Minneapolis Ward 3 Precinct 1. The December 12th State Canvassing board meeting was then discussed; Mr. Gelbmann provided testimony on this day regarding the potential for erroneously rejected absentee ballots. The Minnesota Attorney General then used this information to make a legal decision. Not a single erroneously rejected absentee ballot was counted by a county canvassing board was because the "Coleman campaign went to the Minnesota Supreme court to shut it down;" Mr. Gelbmann agreed.

Mr. Gelbmann is done!

Joe Mansky, the Ramsey County Election Director was then called to the stand by the Coleman campaign. He was on the witness stand for the remainder of today's session. John Rock, a previously unheard of Coleman lawyer, 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 discussed the various mechanisms by which these errors were reported.

Mr. Rock then established the procedure by which the total number of ballots cast is calculated. Mr. Mansky defined over, undervotes and the Statewide Voter Registration System (SVRS). This list contains a lot of data that is used by each of Minnesota's 87 counties; this is where the counties can figure out if a voter is registered, and if they are their information can be update. The SVRS is used to mail registration notification post cards. Mr. Mansky then provided some details regarding voter who were registered on November 5th. Any voter who filed a registration form within 20 days of the election is set aside and filled on the day after the election. The state suggests that such voters should register on election day when they vote in person, but most do not.

It is interesting that Mr. Mansky was called to the stand after the Coleman campaign conceded the 171 votes in Maplewood P6. Relatively little happened regarding Mr. Mansky's testimony; we will likely seem much more from Mr. Mansky tomorrow.

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2 Response(s) to Litigation, Day 4

1/30/2009 6:27:59 AM CT

Thanks for your hard work on summarizing this. Its the next best thing to being there.
Peggy Webster
1/31/2009 1:10:03 PM CT

When is this nonsense going to end??????

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