Litigation, Day 5

An incomplete log of today's events is detailed below followed by a complete summary of today's proceedings:

11:32 AM CT: John Rock is questioning Joe Mansky. Exhibit C209 is the current topic of discussion; the document is an email Mansky sent to Tony Trimble after they had concluded sorting the rejected absentee ballots. The purpose of the letter was to explicitly state that the addition of further ballots was not within Ramsey Counties jurisdiction pursuant to the MN SC ruling. Mansky also stated that there were other ballots in the wrongfully rejected universe and that he was not and still is not opposed to counting those.

11:35 AM CT: The topic shifted to the creation of duplication of ballots. Mr. Mansky discussed the scenario of ballot duplication of absentee ballots. He essentially regurgitated the same information, and process that Mr. Gelbmann witnessed yesterday. The federal ballot is authorized under federal law who are indefinitely living outside of the USA but are still eligible to vote for the federal offices. Pres, Senate and House.

11:39 AM CT: They established 8 recount teams and "two or three" election judges from St. Paul for each team. The judges counted the ballots that the recount teams had sorted into piles of 25; their was a separate pile for each candidate.

11:42 AM CT: The election officials were not aware of the machine determination during the recount. Duplicate ballots were produced in Ramsey County on election night. During the recount, the duplicate ballots were used when the situation presented itself. In past recounts, it was customary to count the duplicate ballots with the originals on hand for verification if the need arose.

11:45 AM CT: Mr. Mansky stated that it should be possible to discern any errors in the counting of duplicate ballots based upon the number of votes and the number of voters. A hypothetical situation was then presented to Mr. Mansky; in Mr. Rocks scenario the originals were to be counted. Mr. Mansky stated that duplicates would have been sorted out. Th e next scenario presented involved original ballots for which its corresponding duplicate could not be found, under the pretense that originals were to be counted.

11:49 AM CT: Mr. Mansky was then asked how an audit would be conducted to verify that double counting did not occur, pursuant to Rule 9 for the above scenario. Mr. Mansky stated that it would be possible to identify this occurrence based upon the number of recounted ballots and the number of total voters.

1:31 PM CT: Charlie Nauen represents 61 voters whose absentee ballots were rejected; this group was established by the Franken campaign. He also spoke to the issue requesting a summary judgment for these voters.

1:43 PM CT: Mr. Nauen just listed off a series of voters whose ballots were rejected, but whose votes should be counted. He then went on to say that Mr. Mansky stated that two ballots from Ramsey County belonging to the group of 61 petitioners should have had their votes included in the wrongfully rejected absentee ballot pile.

1:50 PM CT: A group of state workers are now addressing the three judge panel with respect to the petition above. Pat Diamond is now speaking; he is an attorney for Hennepin County. He is also appearing on behalf of Crow Wing County. He stated that 16 of the 61 ballots included in the petition are from Hennepin County, with one from Crow Wing.

1:56 PM CT: Mr. Langdon then took the floor; he stated that he believes that these 61 ballots should be counted. The Franken side did not offer a response. Mr. Nauen took the floor again and discussed some further issues associated with his constituents.

2:03 PM CT: Bruce D. Kennedy then took the floor; he is representing were voters whose absentee ballots were also not counted. He has no idea who these people voted for, he has not asked them and he will not ask them.

2:06 PM CT: Mr. Kennedy put forth the grounds under the intervention was presented to the court. Mr. Langdon took the floor and stated that he also believes that these seven ballots should be counted. He stated that their are other voters with similar claims that deserve to have their votes counted.

2:09 PM CT: Franken's lead attorney, Marc Elias, was then allowed to respond to Mr. Langdon and the intervention brought forth by Mr. Kennedy. This is not a question of whether these voters should be considered, the question is whether the intervention is the correct process; it would effectively created another participating party. Mr. Elias does not believe that all seven voters were included in the 1,354 originally identified wrongfully rejected absentee ballots. Each campaign will check their records to confirm this assertion.

2:14 PM CT: The court stated that they would release an order relating to the voter intervention, the court then recessed until Monday.

Summary [9:31 PM CT]: If you recall, yesterday concluded with Joe Mansky, Ramsey County Election Official, at the witness stand; the trial picked up right were it left off with Coleman attorney John Rock performing the questioning. They were on the topic of voter registration, specifically inactive voters. A vote becomes inactive if they do not vote for four years. Mr. Mansky stated that inactive voters can essentially "register on election day," and their vote will be counted. Joe Mansky then stated that an application for an absentee ballot could be hand written on a blank piece of paper; there is no specific document that must be filled out. You must fill out some sort of request before an absentee ballot can be mailed.

Mr. Mansky then discussed and defined early voting in Minnesota; he stated that early voting was not specifically outlined within Minnesota law, but it did occur in the 2008 election. Mr. Mansky stated that their was a substantial increase in early voting when compared to previous elections.

Mr. Mansky was then asked to establish the process a voter would have to undertake in order to vote absentee. He then continued by saying that the secrecy envelope is scanned and a link is provided within the registration database for use by election officials. Apparently their is a process, at least in Ramsey County, by which voters are allowed to vote in person up to five Fridays before election day. If an error is made, and the error is identified at least five days before the election another absentee ballot will be mailed to the voter whose ballot was rejected. This process varies on a county by county because not all counties have an absentee canvassing board.

In some cases, an "agent" is used to allow ill or disabled voters the capability to vote. This option is available up until 3:00 PM on election day. Mr. Mansky stated that the vast majority of absentee ballots are received around 6:00 PM, but due to the large number of absentee ballots this year, the deadline was pushed back in some precincts.

There are two type of absentee ballots; one version is for voters who are already registered, and the other classification includes ballots which must be accompanied by a valid registration form in order for the associated vote to count. "In Ramsey County they use a header card" to distinguish absentee ballots from regular ballots when the ballots are machine counted. If their is a registration outside of the secrecy envelope, election officials do not open the secrecy envelopes, "as a matter of practice."

Voters whose ballots are identified as invalid within the aforementioned five day window are not notified of the error; they are not mailed another ballot. The voter is classified as having voted for the purposes of remaining an active voter within the registration database.

Mr. Mansky then laid out the process by which absentee ballots are examined and eventually counted. Election officials do not actively search for a signature or other misplaced information on the absentee ballot; "if we don't have a clear indication that the person is registered to vote," the resources are not available in both time and man power to investigate each individual case. Mr. Rock then asked if a witness whose ballot was rejected yesterday should have been counted. Mr. Mansky was very clear that some ballots were rejected because adequate information was not available when the decision was made on election day. He stated that the witnesses vote would have been counted if the information that is currently available was available when the decision was made.

Mr. Mansky stated that election officials try to err on the side of enfranchising voters. Mr. Mansky explicitly stated that mistakes are made when deciding to accept or reject absentee ballots. There was a little under 31,000 total absentee ballots in Ramsey County; the rejection rate was about 5%, which was slightly higher than in previous years. Mr. Mansky could not provide any factual reason for this increase but did express an opinion; he believed that the influx of new voters attributed to the increase in the rejection rate. Ramsey County sorts rejected absentee ballot by issue; this facilitated the creation of the infamous fifth pile. The wrongfully rejected absentee ballots which were counted on January 3rd are in the custody of the Secretary of States' office.

Mr. Mansky stated that there is "a small group" of absentee ballots which remain rejected that qualify to be counted; he stated that there was a minimum of 62 that fit this description. Mr. Rock then moved to Exhibit C210; Mr. Mansky has previously viewed this document during his deposition. The document contains a selection of rejected absentee ballots and Ramsey County documentation. Mr. Mansky stated that a ballot from Roseville had an address sticker placed over the signature portion; this was an error by the election official, and as such Mr. Mansky believed that this vote should be counted.

Mr. Rock moved forward with Exhibit C251, another return rejected absentee ballot with a missing signature. The address sticker was again placed over the signature portion, Mr. Mansky believed that this ballot should also be accepted. Mr. Mansky stated that he only needed to analyze the absentee ballot envelope to determine that the voter was not presented with proper instruction.

Mr. Mansky asserted that Ramsey County officials try and give latitude to the voter when signatures are compared. Mr. Rock then presented yet another rejected absentee ballot in Exhibit C252; it was rejected because there was not signature no signature, but Mr. Mansky asserted that the proper signatures were present and the vote should be counted. Onto Exhibit C253, only this time there are three rejected absentee ballots and their associated registration and secrecy envelopes. They were all "apparently" rejected on a signature issue. Mr. Mansky stated with regard to the first ballot that the two signatures were somewhat different but they were not "dissimilar enough" to warrant rejection; Mr. Mansky likely would have accepted this ballot. On the second envelope, a middle initial was included in one signature but not the other; Mr. Mansky stated that he would "probably accept this" despite the inclusion of a middle initial. Mr. Mansky stated that the third ballot should also be accepted based upon another misplaced sticker from Roseville.

Mr. Mansky then discussed some special circumstances where the voter themselves is not required to sign their own signature. In order for forgery to be permissible, it must have been indicated on the absentee ballot request form. In some cases, an 'X' can be used as a signature so long as the "same marks" are included on the application and the ballot envelope.

Turning back to another Exhibit, C205; it contains another rejected absentee ballot due to mismatched signatures. Mr. Mansky stated that the signatures do not match and was therefore properly rejected. There was a note on the envelope stating that the signature was signed by somebody other than the voter; this complicated the manner, but they did not specify that another person would be signing the ballot when they applied for a ballot; had there been additional information about the voters physical condition the vote may have been allowed to count, but because this additional information was not available the vote was properly rejected.

Mr. Mansky reaffirmed his previous assertion that it is not necessary for the signature to appear in the signature placeholder, but there is no guarantee that the election worker would have seen the signature elsewhere on the ballot. If they would have noticed a signature somewhere on the envelope, they were instructed to count the vote.

Mr. Rock presented another Exhibit in the long line of rejected absentee ballots, C254. The election judge stated that the drivers license number was incorrect on the return envelope, but Mr. Mansky stated that this was not required by law. The ballot in question was for a non-registered voter; Mr. Mansky was then asked to refer to Exhibit C245, a list of the absentee ballots which were opened by the State Canvassing board on January 3rd, 2009. Mr. Rock then pointed out another ballot which was also incorrectly rejected due to the drivers license number, but was eventually counted. Mr. Rock referenced another absentee ballot which was rejected for a mismatched drivers license number. Mr. Rock then presented Exhibit C255 which contained three sets of absentee return envelopes and applications.

Mr. Rock asked if he knew if any of the ballots listed within C255 contained a registration form within the secrecy envelope. He could tell based upon the format of the return envelope that the voters were deemed to have been registered by an election official receiving the absentee ballot request.

Judge Marben then asked if there was a signature mismatch that was witnessed by an election official. Mr. Mansky stated that in that situation the election official would have known it was the same person who signed both signatures. In any particular situation, the election official would have been present and could have directly questioned the voter regarding the signatures.

A fifteen minutes recess was ordered.

The registration cards which are within the return envelopes are card stock so long as they are supplied by a Ramsey County election official.

Another exhibit was introduced with three return envelopes and three application cards, C258. The first ballot was originally accepted and was "presumed" to have been counted. Turning back to Exhibit C245, the first ballot in C258 was not counted on election day, but was included in the 953 ballots which were classified as wrongfully rejected. The second ballot in C258 was marked as accepted, but it was not counted on election day, but was also included in the 953 ballot subset previously mentioned. The third and final ballot within C258 was marked as accepted and was also excluded from the election day count, but was eventually counted.

The third ballot's return envelope was that of a non-registered voter, but was previously registered as noted on the envelope. Mr. Mansky stated that the noted would have caused the ballot to be treated as a registered voter's absentee ballot. Exhibit C259 was submitted with a single return envelope and a single registration form. Mr. Mansky was unsure as to whether the ballot was accepted or rejected; he stated that the ballot should have been accepted. Mr. Rock asked Mr. Mansky to find the ballot depicted within C258 in the list presented in C245. If a ballot is not marked as accepted or rejected, there is no clear protocol.

Exhibit C260 was then presented with a single return envelope and the application form. The ballot was rejected with an unclear reason, but Mr. Mansky believed that the ballot should have been accepted. This ballot was also included in the 953 ballots that were counted on January 3rd. Mr. Mansky stated that the wrong absentee ballot is occasionally sent to a voter; in this situation a duplicate ballot is created and counted.

The attention turned to Exhibit C261; this ballot had three return envelopes and three application forms. The first ballot was accepted, but was not counted until January 3rd; the ballot was originally rejected, and Mr. Mansky stated that the absentee ballot was not from the correct precinct. The election judges should have duplicated the ballot and counted it. The second ballot was rejected for the same reason as the first, and like the first, should have been counted. The second ballot was however not counted on election night or on January 3rd.

Dating the signed envelope is not required for either the voter or the witness; a date mismatch is irrelevant. Mr. Mansky then defined the fifth pile which included ballots which should not have been rejected, but were; this fifth pile was partially counted on January 3rd. Election officials reviewed the polling roster for all rejected absentee ballots; they also looked at the reason for rejection. In most cases the inclusion of exclusion of a ballot could be determined from the face of the return envelope. Mr. Mansky stated that all possible permutations revolving decision that could made based soley upon the face of the return envelope were covered.

At this point go read the log at the very top of the page starting at 11:32 and ending at 11:49 AM CT.

Mr. Rock established the information that would have to be acquired to determine the total number of voters and the total number of votes. 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. Mansky suggested that abandoned duplicate ballots could have been identified based upon voting patterns and by their appearance.

Mr. Rock concluded his questioning of Mr. Mansky; Mr. Hamilton stated that his cross examination would take "two to three" hours. Mr. Mansky was ordered to return on Monday as the court was going to devote its afternoon session to "several important motions." The three judge panel requested a meeting with the presiding attorneys in the conference to talk about future scheduling issues.

The afternoon session began at around 1:30 PM CT and center around individual voters who were requesting to intervene into the election contest to ensure that their votes are counted. The afternoon session last about half an hour and is detailed above beginning at 1:31 and concluding at 2:09 PM CT.

The election contest will resume on Monday at 9 AM CT. I plan on writing another article tomorrow providing a less detailed summary of this week's proceedings. In the meantime I would suggest reading my analysis of Norm Coleman's election contest and the subsequent data tables [PDF].

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