Franken Lawyer Grills Election Official In GOP Town
In the Minnesota election trial today, Franken lawyer Kevin Hamilton appears to be laying out a case that election officials have applied inconsistent standards in how they treated absentee ballots -- exactly the sort of case Norm Coleman has made.
The rub: The case is that a local election official in a Republican area has been especially strict with ballots the Franken camp wants included, and permissive for Coleman.
Over the last two days the court has been interviewing Sandy Engdahl, the elections manager for the GOP-leaning Minneapolis suburb of Plymouth. Yesterday, Engdahl in many cases agreed with Coleman lawyer Joe Friedberg that some ballots had been improperly rejected. She even went further and volunteered that over the last few days she'd found 11 more envelopes that ought to be included, which weren't ruled as such during the review of rejected ballots this past December.
Then it was Franken lawyer Kevin Hamilton's turn.
Hamilton went over those 11 new ballots with Engdahl, along with other ballots that had been offered by Friedberg, and reviewed problems that do actually exist on those votes. In one case Engdahl bluntly said: "Yes, I stand corrected with that."
Hamilton then took a trip back in time to the absentee-ballot review in December. The Franken campaign had submitted to Plymouth the cases of three voters who were asking for their ballots to be included. Engdahl had rejected all three at the time.
For example, one of them was a blind woman, who explained that her son signed the forms for her. Having someone else sign a ballot form is normally illegal -- except for someone who is unable to sign their name due to a problem such as a disability, which is specifically codified in state law.
But Engdahl continued to say this ballot shouldn't be counted -- that it was not the genuine signature belonging to this woman. And she said this even after Hamilton had her read from the relevant statute.
Hamilton also reviewed other envelopes that roughly match the ones that Engdahl has now said should be counted -- presumably the ballots Hamilton is offering are Franken votes -- and securing agreement that if she is for counting other ballots she's given assent to in the last two days, these should be counted, too.
One other thing worth pointing out: During her entire cross-examination so far with Hamilton, Engdahl has appeared to be very uncomfortable.
Josh
Matt
Eric
...the GOP-leaning Minneapolis suburb of Plymouth
That's an understatement. That's kinda like saying that Karl Rove is a GOP-leaning consultant.
That'll happen when you get exposed for violating election law to favor your party of choice.
February 13, 2009 1:37 PM | Reply | Permalink
Trying to throw an election....you better believe that's a paddling...
February 13, 2009 3:12 PM | Reply | Permalink
Guess which member of Monty Python grew up inside the city of Plymouth?
http://en.wikipedia.org/wiki/Terry_Gilliam
http://en.wikipedia.org/wiki/Medicine_Lake,_Minnesota
So, something good did come outta there!
- FTF
February 13, 2009 3:55 PM | Reply | Permalink
So I guess Coleman plans to call every election official in the state of Minnesota, followed by every person who cast an absentee ballot (assuming they're still alive by that time), followed by...I don't know...the next millennium.
When, oh when are these judges going to regain control of this filibuster?
February 13, 2009 1:44 PM | Reply | Permalink
The Minnesota Supreme Court famously does nothing and has months to spare from its idleness to devote to this "case" and generally to playing with itself (for which they are well-paid and renown). They have budgeted 30 minutes for each of the 11,000 absentee ballots (once the two camps finish making their cases sometime in June) and will begin work promptly on the ballots after a short break of several weeks duration to relieve the tedium.
February 13, 2009 1:56 PM | Reply | Permalink
11,000 x 30 minutes = 330,000 mintues of ballot-checking.
330,000 % 60 = 5,500 hours of ballot-checking.
5,500 hours divided by an 8-hour work day (which is awfully optimistic) = 687.5 work days... just checking ballots and nothing else.
Ouch.
February 13, 2009 3:22 PM | Reply | Permalink
You didn't extrapolate far enough.
688 work days/5 = 138 work weeks
138 work weeks/52 = 2.5+ YEARS!
Those numbers have been rounded off, but you get the point.
February 13, 2009 5:21 PM | Reply | Permalink
To me it sounds like Franken's lawyer is making Coleman's case here. Coleman is saying ballots were held to different standards and thus all should be counted.
Coleman's lawyer should just stand up and say "I agree with Hamilton's conclusion, that ballots were improperly rejected and held to differing standards depending on the polling district and thus would conclude that it is impossible to come to a proper count based on how close this election was. I would further suggest that either Mr. Coleman and Mr. Franken have a special election that would be paid eqaally between the State and the two parties, or Gov. Pawlenty name a Senator and an election could be held in 2010 to save the tax players money in these tight times."
February 13, 2009 2:21 PM | Reply | Permalink
My guess is that if Coleman's team did that, then the three judges would say "denied". Same for the MNSC.
The only question before a Contest is who received the most votes legally cast. After the Contest and any appeal to the MNSC, the certificate is issued.
If Coleman wants to make the arguments that you write about, he will have to take them to the US Supreme Court.
February 13, 2009 2:53 PM | Reply | Permalink
That's reading too much into what Franken's lawyer is doing here. He is very specifically show that it was Sandy Engdahl who violated the express language of the Minnesota election law here, not that the total election was corrupt. Where in this report is there any evidence at all that the corruption by Sandy Engdahl as an individual corrupt election official has somehow contaminated the entire election state-wide?
Elections have always had individual pockets of corruption, but we still hold elections for some reason. Normally we ignore such small isolated cases of biased election administration on the assumption that in the overall election such instances will balance out as just random noise. That works when the election is not close, and it is a necessary practice since chasing down every case of corruption in every election is frankly just not cost-effective.
Unless there is also some evidence that this is just one example representative of many other like it, then what appears in the report above does not suggest that the problem goes beyond just Sandy Engdahl to a wide-spread pattern that was biased against Coleman. That, in my opinion, is a likely approach to be taken by Franken's team. Coleman's team will, of course, argue that the instances they brought up are both sufficiently egregious and numerous as to indicate that the total election was, in fact, biased.
This testimony by Sandy Engdahl does, however, throw real doubt on her earlier statements themselves. It doesn't look like any competent observer would consider her an especially competent witness.
I'm not an attorney, but I have taught social science research methods and that's how I would interpret this piece of data.
I am, of course, also depending on the faithfulness of Eric's reporting for a full report of all the facts about Engdahl's testimony. Secondary sources of data always have weaknesses that aren't clear to the reader.
February 13, 2009 2:54 PM | Reply | Permalink
My guess is that if Coleman's team did that, then the three judges would say "denied". Same for the MNSC.
The only question before a Contest is who received the most votes legally cast. After the Contest and any appeal to the MNSC, the certificate is issued.
If Coleman wants to make the arguments that you write about, he will have to take them to the US Supreme Court.
February 13, 2009 4:59 PM | Reply | Permalink
There's a logistical problem with having an appointed senator and special election, in that the appointment would have to be for a full term. Otherwise, the winner of a 2010 election would only serve for four years.
This is called being between a rock and a hard place.
February 13, 2009 5:32 PM | Reply | Permalink
It seems like whenever there's a potential equal protection violation, Coleman benefited. No one seems clear on whether that would weaken Coleman's equal protection violations claim. Does he have to show a violation, or does he have to show he was the victim?
February 13, 2009 2:21 PM | Reply | Permalink
It looks to me like Coleman has two choices.
The first choices is that he can pick out enough individual votes that were somehow wrongly counted against him or not counted for him, and then total them up to somehow defeat Franken. Starting at a deficit of 250 and assuming that Franken's team can't somehow find the individual votes to counter Coleman's or discredit the one's Coleman presents., that seems very unlikely to me. The Minnesoata votes cast in this election are by now a thoroughly harvested field with few scraps left to glean.
The second choice is to show from the individual cases presented that it is extremely unlikely that the election itself was run in a manner that assured anything close to a fair count representative of what the voters themselves intended to say. Any evidence that this is the case is going to have to be quite strong to overcome the assumption that Minnesota elections have been being held regularly and that the law was followed for a long time. Either this is going to have to be shown to be an unusually poorly administered election, or Coleman's people have to show that Minnesota's recent elections have all been corrupt and biased.
The second choice, by the way, would include the equal-protection argument, which is itself weakened by the Supreme Court's statement that the SC 2000 election was not to be used as a precedent. It seems to me that if the Justices were to seriously consider this option, they would have to take into consideration that choosing it would throw doubt on all recent Minnesota elections.
If there are any other possible arguments, then I don't see them right this moment.
It just doesn't seem likely to me that Coleman has a real case. But I do think he will stretch this out as long as possible so as to keep the Democrats from having their full 69 votes in the Senate. As I understand it, he is being funded by big money somewhere, and that seems to me to be the most likely reason to keep this case going and to keep Franken out of the Senate.
But that's just one out-of-state non-attorney layman's personal opinion based on what I have gotten mostly from Eric's reporting. (I'm DEPENDING on you, Eric.)
February 13, 2009 3:23 PM | Reply | Permalink
He has to show BOTH
1. that he was damaged, AND
2. that correcting any error would be enough to change the result of the election.
It seems that Hamilton's intent here was to show that any errors that occurred cut both ways, and thus neither of the above criteria would be met.
February 13, 2009 3:27 PM | Reply | Permalink
Good Lord - WHEN WILL THIS END???
February 13, 2009 2:22 PM | Reply | Permalink
2011.
February 13, 2009 2:55 PM | Reply | Permalink
If I'm right in what the Coleman team is now in court for, this particular case will end when the current court decides that there is enough evidence to to be reasonably sure that nothing they hear later is likely to change the decision they agree on. Then they will stop the presentation of further evidence and witnesses. Pretty obviously they aren't too concerned about the expense of their time as it is.
After that, the Coleman team will continue to delay as long as they can find new venues to appeal to and delay seating of Franken.
Apparently the funding for the Coleman team is not a restriction on their continued filibustering of what is rather clearly (to me) an otherwise lost cause. So it comes down to the fact that the delay will continue as long as there are new venues they can appeal to that still keep Franken from being seated.
February 13, 2009 3:58 PM | Reply | Permalink
They could decide that now. After three weeks Coleman has presented nothing but a lot of random tiny errors that, taken together, would not change the result of the election. If he's shown nothing in three weeks, I think you can be reasonably sure he has nothing.
I don't think you are. He's not in this to win. He knows he can't. I think at this point, Coleman is hoping to drag this out indefinitely. The purpose is twofold:
1. Help the Republicans in the Senate by depriving the Democrats of Franken's vote.
2. Try to force a stalemate, whereupon all parties would agree to Pawlenty's appointing someone else and they'd have a new election in 2010.
February 13, 2009 5:41 PM | Reply | Permalink
The next time Minnesota has an election within .5% in November, we should have a runoff election in December.
This would require the state legislature to change the law.
February 13, 2009 3:41 PM | Reply | Permalink
That is a terrible idea.
What do you plan to do if the runoff is as close or closer?
Besides, in this election, .5% would be a lead of nearly 150,000 votes. You believe that someone who wins by more than 100,000 votes should have to win a second time?
February 13, 2009 4:05 PM | Reply | Permalink
If it's within .5% in December, then have another election in January.
RE "You believe that someone who wins by more than 100,000 votes should have to win a second time?"
The first time that margin may have been influenced by a third candidate.
February 13, 2009 4:28 PM | Reply | Permalink
If there's a third party candidate and no candidate receives a majority, then there's a good reason to have a runoff. But holding the election again and again until a clear winner emerges is folly. The idea of an election is to find which candidate is preferred by the most voters, not which candidate has the most persistent voters.
February 13, 2009 5:13 PM | Reply | Permalink
The first runoff should be limited to the top two vote-getters in the main election. That's the usual solution to that problem. Such run-offs normally seem to occur when there are three or more candidates in the main election.
My bet, though, is that such run-offs will generally return the incumbent or the candidate favored by the entrenched powers. That's what happened in Georgia last year.
February 13, 2009 6:22 PM | Reply | Permalink
Right. Because all of the momentum generated by the excitment of the moment that drives turnout is dissipated, and lower turnout almost always benefits the established powers.
February 13, 2009 8:45 PM | Reply | Permalink
Your point is well taken, but not your multiplication. 0.5% of 3,000,000 is 15,000. Judging by this election, a complete recount wouldn't be needed unless the margin were under 5,000, maybe less.
February 13, 2009 4:54 PM | Reply | Permalink
A better solution is a ballot with a 2nd choice option. It allows people to vote for 1st and 2nd choice. If no one gets a straight majority or in case of a tie, you take all the votes cast for everyone other than the top two and count their second choices. This is done for some elections, and it is a bit more complicated to prevent unintended consequences, but it allows people to show support for a long shot and it helps avoid these type of problems.
Another remedy is to allow early voting, with public record of whether a vote is recorded. This is what is done in Oregon. A voter and/or the election office has 10 days to sort out any problems for ballots received but not acceptable for some reason. That way, there is a short, reasonable time to confirm ballots were counted, and then a bright line cutoff if no challenge is raised.
February 13, 2009 4:16 PM | Reply | Permalink
I agree with you, Eric. The court could decide that nothing new was remotely likely to occur to change their minds now, but this court probably has its eyes in part on public opinion and on the clear probability of an appeal. They want it clear that they got the decision right before they let it go.
I also agree with you that I'm pretty sure Coleman knows he can't win the seat now, barring a lightning strike that is less likely than winning the lottery. Coleman's rather obviously not in this to win back the seat he lost so embarrassingly. At this point the likelihood of success at that effort isn’t worth the effort. But for Coleman, the cost of conceding is high.
He has not only lost his seat in the Senate, he has lost the power, the goodies and the career prospects that went with it. On top of that, there is the way he lost the race. Not only was the loss narrow, Coleman is a right-winger who lost to - of all things - a professional comedian. He lost to a clown. In his circles that's not much better than Ashcroft losing his Senate seat to a dead man. There is no real prestige in such a loss. It is a career killer. In Ashcroft's case, Bush 43 saved him from ignominy by appointing him Attorney General. Norm isn't going to get any similar protection from a minority party which is clearly losing its popularity generally. His lifestyle and future have taken a bad hit.
The only possible remaining reason for Coleman to continue this is that he needs the money that is being funneled from the Republican party to set up his current and future life. And the only reason I can see for that money to continue flowing is to delay seating Franken in the Senate for as long as possible.
The result is that while the likely outcome of the appeals to the courts is as clear as anything in politics, the pressures on Coleman and on the Court make it likely that this will go on for a while yet.
February 14, 2009 11:53 AM | Reply | Permalink
Are they going to interview the entire state populace, OMG, this is driving me to drink.
February 13, 2009 3:43 PM | Reply | Permalink
At this rate, by the time Franken gets in the Senate, Joe Piscopo will be Governor of New Jersey.
February 13, 2009 3:54 PM | Reply | Permalink
For the umpteenth time, Minnesota sure does need TWO senators right now!! The Minnesota Supreme Court to put an end to this Coleman charade and order a Franken election certificate from the Governor Timmy Pawlenty.
February 13, 2009 4:26 PM | Reply | Permalink
I've been watching this and Ms. Engdahl ("yesSSSS") has been playing so fast and loose with reasons for rejecting absentee ballots, I have to wonder if there isn't some violation of statutes here. At times she just flat out made up reasons for rejecting them.
February 13, 2009 4:48 PM | Reply | Permalink
Sandy Engdahl, referring to the blind woman ballot rejection, should be prosecuted. There must be some kind of fraud law? When she was read the statute in Election Court, if she said, "Oh sorry, I didn't know that, I made a mistake," then I'd say forget about it but her response gives evidence that she purposely committed fraud/racketeering for the Republicans!
When our kids/college students/young workers hear/see so many (mostly) Republican politicians/executives cheating/stealing and only one in ten billion ever get prosecuted, if found guilty are sentenced to golf prison and/or get only fines, I think the lack of justice/prosecution in America has been the foundation for perpetual political/executive crime.
February 14, 2009 11:31 AM | Reply | Permalink
I believe Ms. Engdahl made news just before the election, taking care to make sure Tom Petters who is in Jail in Ramsey County charged with a 3.8 Billion Dollar Ponzi Scheme, got his ballot in the lock-up, so he could vote. He isn't a convicted felon yet, but got no bail till trial because the FBI thought he was preparing to flee the country. Petters shares the same accounting firm with Madoff. Petters gave money to both Republicans and DFL'ers, but his heart was always with Normie.
Such is her determination to count every vote.
February 13, 2009 11:58 PM | Reply | Permalink
I thought it was obvious when the first approx. 900 IRABs were opened at the end of the recount procedure, and Al Franken increased his margin by 170 more votes, that local election officials had been selectively rejecting absentees IN ORDER TO FAVOR COLEMAN. My hypothesis is that lots of those first-batch IRABs were from students attending out-of-state colleges---a sub-set which heavily favored Al as well as Dean Barkley. So GOP-sympathizing election judges, noting the college addresses on outer envelopes, would misplace or just not manage to count those votes, disproportionately more than the locally-originating absentees, such as from the elderly or the out-of-town business persons . . . subsets likely to favor Coleman.
I just have this theory but don't know for sure. Just as I don't know for sure why an envelope from a pro-Franken precinct, containing more ballots in Franken's favor, mysteriously vanished before the recount took place. There is a rumor that that particular precinct, next to the university campus, was the scene of Republican challenges against voters' eligibility on election day.
February 14, 2009 2:04 PM | Reply | Permalink
I have a bit different take on Ms. Engdahl's testimony. First, I didn't think she looked particularly uncomfortable through all of the cross examination. When Hamilton was asking about ballots that were thrown out by the election officials that Coleman wanted counted, she readily defended her original decision. Where she started being combative is when Hamilton started talking about clearly erroneous ballot rejections, like the blind woman. So in my view, she was being defensive about her office's handling of absentee ballots.
That's not to say that it was hard to discern that she is Republican leaning. Joe Friedberg, Coleman's lead lawyer, asked about a ballot that was entirely lawful, but had not been counted. Engdahl said that it had been excluded because one of the campaigns had refused to allow it in. Only in Hamilton's cross examination did it come out that it had been COLEMAN's campaign that vetoed that particular ballot.
February 14, 2009 9:25 PM | Reply | Permalink