The trial on Minnesota's U.S. Senate recount stalled on its first day Monday when the judges said photocopies of 5,000 excluded absentee ballots couldn't be used as evidence because Republican Norm Coleman's campaign workers had marked on them.
Coleman's lawsuit argues in part that local election officials wrongly rejected many absentee ballots. Democrat Al Franken has a 225-vote lead and says any flaws are not substantial enough that they resulted in the wrong man winning.
The marks the campaign workers made included, in some cases, numbering or redaction of private information. After a Coleman witness admitted to the markings, Franken's attorneys objected to using them as evidence because they had been altered.
The three-judge panel hearing the case agreed and told Coleman's attorneys they would have to subpoena the original ballot envelopes instead. That could add days or more to a trial already expected to last weeks at a minimum.
Coleman's lead trial attorney, Joe Friedberg, said he had intended that the individual entry of the photocopies into evidence would last a full week.
"We were not prepared to go forward with any other part of the case — probably until next Tuesday," Friedberg said.
That elicited little sympathy from the three-judge panel. "... you better have some backup witnesses," Judge Denise Reilly said.
Coleman's lawyers later said the witnesses they plan to call Tuesday will testify that different standards were applied to similar types of absentee ballots.
State law cites four reasons for rejecting absentee ballots: The name and address on the ballot's envelope do not match a name and address on the voter rolls; the signature on the envelope doesn't match the voter's signature on file; the voter was not registered when he or she voted; or the voter went on to vote on Election Day too.
Coleman argues the standards were applied differently from county to county and the constitutional right of equal protection requires that similar mistakes be treated equally.
"What we're asking you to do is do the best you can to level the playing field," Friedberg said. "If you've done that, you've done about all you can to guarantee equal protection."
After the judges refused to consider the photocopies as evidence, Coleman's lawyers said they'd likely have no choice but to subpoena not just the 5,000 absentee ballots they believe were wrongly rejected, but the wider pool of about 11,000 total rejected absentee ballots. They'd then ask the judges to decide whether the same standards were applied to all of them.
Friedberg said Coleman's attorneys don't know how the votes would break down in the rejected absentee ballots — "I might be trying to get you to count ballots that go overwhelmingly for Mr. Franken," he said.
Franken doesn't attend
The Franken campaign is arguing there are only about 654 absentee ballots that were wrongly rejected and should still be counted. The rest of the rejections were proper, Franken attorney Kevin Hamilton said in his opening statement.
"The evidence will show these ballots have been repeatedly reviewed by local election officials," Hamilton said. "Those officials acted in good faith, and did what the law required them to do."
Coleman attended the first day of the trial, while Franken did not. Coleman said he probably wouldn't be there every day.
"I'm not sure how long this process is going to go," Coleman said. "And I'm not sure how exciting it will be."