Elsewhere in Minnesota news this morning …

MINNEAPOLIS: Flowers’ pot charge dropped. Friday was better for Al Flowers, a candidate for mayor, who had a possession charge dismissed. [Star Tribune]

SECOND CONGRESSIONAL DISTRICT: Kline wants Afghan ramp-up. U.S. Rep. John Kline saw President Reagan get a lesson in saluting, something President Obama will be doing more of if he takes Kline’s advice. [Minnesota Public Radio; New York Times]

MINNEAPOLIS: Episcopalians pass over lesbian, Native American in choosing new state bishop. Instead, it’s a white guy. [Associated Press]

SIXTH CONGRESSIONAL DISTRICT: Health care reform is “crown jewel of socialism.” U.S. Rep. Michele Bachmann urges foes to storm Washington, D.C. and “look at the whites of [her colleagues'] eyes.”  [Talking Points Memo]

STATEWIDE: Anderson starts campaigning on day 2009 candidates stop. Former state auditor Pat Anderson launches her 2010 guv bid with a 14-city tour today, the last day of 2009 electioneering in cities and school districts across the state. [Hot Dish Politics; Associated Press]

ST. PAUL: Lege also an unallotment victim. The state Legislature should change the law if citizen suit over Gov. Pawlenty’s cuts fails, says DFLer David Lillehaug. [MinnPost]

Common Cause president Bob Edgar. Photo: Paul Demko

When Gov. Tim Pawlenty stunned state legislators and Capitol observers in May by announcing that he was going to unilaterally solve the state’s remaining $2.7 billion deficit, the consensus was that it was only a matter of time before his authority to do so would be challenged in court.

After all, the governor’s unallotment powers had never before been utilized in such a dramatic manner. In fact, the authority had only been invoked four times in the last three decades, with the largest sum stripped out of the budget being $280 million. Pawlenty’s decision to utilize the power to close the $2.7 billion deficit was unprecedented — and many believe unconstitutional.

But as the weeks have passed since Pawlenty’s announcement, no lawsuits have yet been filed challenging his authority. Former U.S. Attorney David Lillehaug says he’s provided advice to several groups weighing their legal options. “To this point no organization or government entity has authorized me to file a lawsuit,” he says.

Some potential plaintiffs have already backed off. The League of Minnesota Cities opted not to sue, citing fears that even if it won such a lawsuit it would do nothing to forestall even deeper cuts in the next biennium. The Minnesota Hospital Association also decided against litigation after consulting with the group’s legal advisers.

“They came to the conclusion that it was not something that hospitals wanted to do in Minnesota,” says Janice Hennings, the hospital association’s director of communications. “At this particular time they just felt that it wasn’t feasible to do it.”

The DFL leadership is still considering a lawsuit, according to House Majority Leader Tony Sertich.

“I believe there are many legislators on both sides of the aisle who are concerned about the institution of the legislature and our role in setting the budget and the governor’s overreach,” says Sertich. “Nothing has been decided by anyone.”

Winona County is also apparently weighing its legal options. According to an article in the Winona Daily News, county commissioner Dwayne Voegeli wants to get a legal opinion on the matter from the Minnesota Attorney General’s Office.

“A lot of people are hoping and assuming that someone else puts this out there,” Voegeli told the newspaper. “So why not little Winona County? Someone needs to.”

But so far the only organization that has explicitly stated that it intends to sue is Common Cause Minnesota. The nonprofit group believes there is fertile legal ground on two fronts: challenging Pawlenty’s constitutional authority to use the unallotment powers so broadly and testing whether he can strip out programs that are already enshrined in state law.

Bob Edgar, the president of Common Cause’s national organization, says Pawlenty’s actions set a dangerous precedent.

“What’s going to happen two years from now?” asks Edgar, who was in town this week to discuss the forthcoming litigation with local leaders. “What’s going to happen four years from now? Do you eventually get to the point where the governor makes all the decisions? It’s just a procedural issue that we think stretches the authority of the governor a mile and a half too far and we think the courts ought to take a look at it.”

Common Cause also expects to challenge the elimination of the political contribution refund program. Pawlenty stripped out $10 million in funding for the program, which allows Minnesota residents to get a refund of up to $50 on contributions for state races. Edgar argues that since the program is part of state law, Pawlenty can’t simply decide it no longer exists.

“We’re going to look and find some people who have made contributions to candidates expecting that they will receive their $50 back,” Edgar says. “We’re looking for some low and moderate income people.”

In addition to seeking the proper plaintiffs, Common Cause is also in the process of assembling a legal team willing to take on the case for free. The nonprofit group expects a lawsuit to be filed in late August or early September.

“We’ve been having a lot of conversations with attorneys,” says Mike Dean, executive director of Common Cause Minnesota. “I think I’ve chatted with over 15 attorneys about this. We’re in the process of developing a legal team to pursue this.”

He believes other organizations may have ultimately gotten cold feet about a protracted legal battle. “Honestly, a lot of the groups have backtracked, mainly because of the cost of filing a lawsuit,” Dean says. “It is going to be extremely expensive and a lot of them feel it’s just not worth it.”

Any legal fight is likely to drag on for months, if not years. But in the meantime there will almost certainly be legislative attempts by the DFL majority to explicitly reign in the governor’s unallotment authority when the legislature reconvenes next year.

“I think it’s a fair assessment to say there will be legislation pursued to strictly limit the unallotment authority,” says state Sen. John Marty, who is among the Democrats seeking to replace Pawlenty in 2011. “I think we could pass that. The question is: would the governor sign it?”

Update: ACLU also eyeing possible unallotment legal challenge

In a motion for an expedited schedule filed with the state’s high court Tuesday afternoon (pdf), Franken attorneys Marc Elias and David Lillehaug cite quotes from Coleman and Cullen Sheehan, a Coleman aide, that appeared in the St. Paul Pioneer Press and MinnPost.

The quotes show the Coleman camp has already been hard at work at their appeal briefs, Franken’s motion argues, so let’s put the appeal on a fast track. But taking Coleman at his quoted words, it’s an idea he agrees with.

“We are hoping the court gives us an accelerated schedule, so we are actually working on the briefs now,” Coleman told the PiPress on April 15.

But Sheehan told MinnPost’s Eric Black a slightly different story two days later.

In the 2000 Bush v. Gore recount case, the U.S. Supreme Court only allowed a few days for briefs to be filed. The reason the campaign didn’t immediately appeal the election contest court’s April 13 decision giving Franken a 312-vote win, Sheehan told Black, was so they would have more time to work on their appeal brief — in case the accelerated court schedule his boss hoped for was too accelerated, apparently.

So the Franken campaign urges what the Coleman camp either wanted or was bracing for: a hurried schedule of filing deadlines that has the final brief arriving at the high court on May 4 — a lucky 13 days away.

Photo via The UpTake

Testimony from a witness for Norm Coleman was stricken from the court record today when the three judges in Minnesota’s election contest trial agreed with Al Franken’s side that Coleman lawyers should not have shared notes with her during a break. As seen and reported on The UpTake, it was a dramatic blow for Coleman’s effort to upend his Democratic opponent’s 225-vote recount victory in the fight for Coleman’s old U.S. Senate seat, especially for a team still smarting from other smackdowns Tuesday.

UPDATE: The judges changed their minds and un-struck the testimony (pdf). (They all three signed the order  – does that make three un-strikes?)

Minneapolis election worker Pamela Howell, a Republican, was on the witness stand today to attest to polling place errors that could have led to double-counting of votes. She was under cross-examination by the Franken side when the court adjourned for a short break — during which Coleman attorney Joe Friedberg gave her notes she’d prepared earlier.

When court resumed, Franken attorney David Lillehaug  first demanded to know what the document was and the reason it hadn’t been shared with his team — and then demanded that the court strike Howell’s testimony from the record.

Coleman attorney Tony Trimble’s explanation of the incident as a simple mistake didn’t satisfy the judges. Instead, they had Howell leave the stand having left not an official ripple on the proceedings — though her brief appearance had crashed like an unwelcome wave across the former Republican senator’s deck.

In other court action today, Coleman attorneys argued that a St. Louis County absentee ballot envelope rife with X marks where voter information belonged should not have been counted. The two sides clashed over whether Coleman could solicit evidence from far-flung counties via e-mail. And Cindy Reichert, the Minneapolis elections manager, took the stand later in the day to be quizzed about 133 ballots that went from the city’s Ward 3, Precinct 3. She also said some absentee ballots that may contain registration forms inside remain unopened. Her testimony resumes Thursday.

On Tuesday, Coleman continued to lose ground in his effort to have some ballots counted and others not. And at the end of the day, the court issued an order (pdf) rejecting his request for an injunction to stop state officials from blotting out marks linking 933 ballots tallied in the recount, some of which Coleman now contends aren’t legal.

The interminable quality of the back-and-forth legal battle, now in its fifth week, isn’t lost on the combatants closest to the conflict. An end-of-day interview by The UpTake’s Noah Kunin with East Coast-based Franken attorney Marc Elias included this exchange, after Coleman attorney Joel Friedberg, a Minnesotan, passed the pair in a courthouse corridor:

KUNIN (relaying a question from Elias’ wife, who Elias has said is following the trial via The UpTake “religiously”): When are you coming home, or is that too speculative?

ELIAS: You should have asked Mr. Friedberg. (Turning to shout down the hall) When am I going home?

FRIEDBERG (in an off-mike remark, as relayed by Kunin): The sooner, the better.

Videos and audio link after the jump, with Pawlenty missing a chance to promote Duluth and Klobuchar missing a chance to make a gratuitous Prince reference (we help her with that). 

Pawlenty, on NPR, had some discouraging words about the stimulus package’s prospects but volunteered that Minnesota has a list of transportation projects ready to go in the next 90 days, including Hwy. 610 in the northern suburbs.

By now, Pawlenty is eschewing his formerly wholesale rejection of the stimulus package for piecemeal pooh-poohing. On NPR you could hear him spit out mild contempt for decadent projects proposed for the state’s recreation and related tourist industries:

We had cities requesting snowmaking equipment, and that was Duluth, for something called Spirit Mountain outside of Duluth.

(Ahem, Governor? This is where you make a brief aside for the national listening audience about how great it is to visit Spirit Mountain and Duluth.) Anyway, back to the bad fun:

We had another community requesting funds to rehabilitate a country club at a golf course. We had another city that wanted to build some tennis courts. So those aren’t the kinds of things in this time of crisis that would be priority measures.

Pawlenty recently joined the chorus warning that the stimulus could result in a revival of that dread 1970s trend, stagflation:

You could see the whiplash effect of this being inflation, or stagflation even, in the intermediate term, so if people are going to rewrite the history, I would suggest they look at it not just one year out but three and five years out as well.

Tuesday was Pawlenty’s second appearance on Maddow’s show. The first time, Nov. 3, he opened with the announcement “I’m available, I’m available” (to go on the show, he meant, although the context of the ensuing interview was also his availability for higher office in the future). This time he greeted Maddow with the Goldie Hawn-ish endearment, “You’re funny.”

Here is the video clip of Pawlenty’s appearance on Maddow’s show Tuesday night:

Maddow’s online video archive indicates three previous appearances by Klobuchar (Sept. 17 and Oct. 8 and 31). A highlight of this one was the DFL senator’s prediction about how long it will take for Minnesota’s Senate delegation to be complete.  Here’s a brief transcription and Monday’s video clip:

KLOBUCHAR: My prediction, Rachel, is that we will have a new senator by the time the ice melts on Lake Minnetonka, which that is predicted to be April 11.

MADDOW: Is that the sort of thing where you guys throw a cinder block into it to really help things along?

KLOBUCHAR: Well, oftentimes people dive into it to show how tough they are in the cold. But anyway, hopefully we will get this done in a month or so because the trial’s been going on. It could be even sooner.

That may be the first time in 25 years that jumping into Lake Minnetonka has penetrated the nation’s consciousness. The last time, of course, was Prince’s “initiation” of Apollonia Vanity (that’s a character’s name, not a character flaw) in the movie “Purple Rain.” Here’s a transcript of that scene (a variation on the dog-bite routine from “The Pink Panther”):

PRINCE: You have to purify yourself in the waters of Lake Minnetonka.

APOLLONIA: What?!

PRINCE: You have to purify yourself in Lake Minnetonka.

[APOLLONIA disrobes and gets ready to jump in.]

PRINCE: Hey, wait a minute that’s– [splash!] Uh, hold it.

APOLLONIA: What?!

PRINCE: That ain’t Lake Minnetonka.

YouTube has a video clip of the scene but it is not safe for work and not – repeat: not – safe for re-enactment by Norm Coleman or Al Franken, nor indeed by any of their attorneys, notably Joe Friedberg, Ben Ginsberg, David Lillehaug and Marc Elias.

But if they do, The UpTake will carry it live.

Images from TheUpTake.org video

A window opened this morning — and may not quite have closed again completely — on the promise of a speedier resolution to Minnesota’s senate-seat dispute. 

But first, Valentine’s Day seemed to have come early as Week 3 of the election contest trial between Al Franken and Norm Coleman began with a retiree-age version of the Newlywed Game. The former senator’s lawyers started Monday by calling to the stand two husband-and-wife pairs of absentee voters whose ballots had been rejected for improper witnessing. The trial momentarily took a turn for the domestic with he-signed-she-signed testimony that seemed to soften even the lawyers on the Franken side, who let the couples off with only light cross-examination.

Then, just as what seemed sure to be more interminable questioning of a local election official was getting underway, Franken attorney David Lillehaug rose to make a major objection. Coleman’s side, he said, had not answered the Franken side’s questions about the evidence they were going to present, as the court has ordered them to do.

Lillehaug said the trial’s “extraordinarily inefficient” process was due to Coleman’s failure to respond to Franken interrogatories — essentially not answering questions about the ballots that Coleman will be putting into evidence.

For nearly 4,800 individual rejected ballots, Lillehaug said, Coleman’s side produced only two spreadsheets: one with 3,116 ballots for which they contend the voters complied with state statutes, and another of 1,623 ballots for which the voters’ noncompliance was the fault of election officials.

Specifically why does Coleman think any individual ballot should be counted? “We don’t find that out until direct questioning,” Lillehaug complained. Indeed, he said, Coleman’s attorneys often don’t seem to know the particulars of ballots until their own questioning of witnesses.

Coleman attorney Joe Friedberg responded that the snail’s pace of the trial was Franken’s fault because the campaign hadn’t allowed Coleman’s side to present ballots in statewide categories by reason for rejection.

“We could do this a lot cheaper and a lot quicker,” Friedberg told the court — if only Franken’s attorneys hadn’t jumped on flaws in Coleman’s photocopies of ballots, forcing a county-by-county process with county officials on the stand to vouch for and explain the markings on each election document and envelope.

But the court didn’t (yet) take the opportunity to rein in a proceeding that experts say could easily takes months longer at the rate it’s going — all the while costing the Democrats a crucial vote in the U.S. Senate.

After an hour’s recess, Judge Kurt Marben, the presiding judge of three who make up the special election contest panel, announced the panel was overruling the objection but would discuss the pace of the proceedings at the regular scheduling conference with both parties later in the day. With that, the painstaking examination of Dakota County Election Manager Kevin Boyle by Coleman attorney Joe Friedberg resumed.

Live streaming video from the election contest trial is available at The UpTake. Documents filed and orders issued in the election contest are available from Ramsey County District Court’s Web site.

Franken’s campaign argued that he should be seated as the state’s junior senator while that lawsuit works its way through the courts. “The interests of the State, its constituents, and the Nation are best served when Minnesota is fully represented in Washington, D.C.,” read the letter from Franken attorney David Lillehaug.

It seems unlikely, however, that the Franken campaign’s argument will prove persuasive. Secretary of State Mark Ritchie immediately issued a statement taking issue with his fellow Democrat’s reading of the law.

“Minnesota law is very clear on when a certificate of election can be issued,” he stated. “Neither the governor nor I may sign a certificate of election in the U.S. Senate race until all election contests have reached a final determination. Even if the governor issues a certificate of election prior to the conclusion of the contest phase, I will not sign it.”

Marc Elias (pictured above), Franken’s lead recount attorney, declined to say whether the campaign is prepared to go to court if Pawlenty and Ritchie do not immediately certify the election. “We don’t take any options off the table,” Elias said in a conference call with reporters this morning. “Certainly we are eager for Sen.-elect Franken to receive the certificate he’s entitled to.”

Elias also announced that the campaign will be filing a counterclaim to Coleman’s legal contest in Ramsey County District Court today. In addition to rebutting Coleman’s petition, which Elias characterized as “riddled with errors,” it will lay out three groups of voters that the Franken campaign believes had their ballots wrongly rejected during the recount.

The first class consists of 35 Duluth voters whose absentee ballots were rejected because their signatures were improperly dated — which isn’t one of the four reasons laid out in state statute for why a ballot can be properly invalidated. The second group consists of 87 ballots for which the Franken campaign had submitted affidavits to the state Canvassing Board supporting the belief that they were wrongly rejected. Finally, there is a group of roughly 700 ballots that the Franken campaign has scrutinized less rigorously, but believes may have been improperly invalidated.

UPDATE: Gov. Tim Pawlenty has weighed in on the Franken campaign’s request. In a statement he said:

“I have a duty to follow state law and our statutes are clear on this issue. I am prohibited from issuing a certificate of election until the election contest in the courts has been resolved.”

Al Franken (Photo: Aaron Landry) and Norm Coleman (Photo: WDCpix.com)

UPDATE: Judge Lindman has ruled in Franken’s favor.

The fight over the closest Senate contest in Minnesota history turned to the Ramsey County Courthouse this morning.

In a hearing before Judge Dale Lindman, Al Franken’s campaign argued that Ramsey County election officials should be required to turn over information about rejected absentee ballots. Attorney David Lillehaug made the case that the names of all voters who had their ballots invalidated, along with the reason for that decision, should be provided.

“That information is critical to the plaintiff,” he stated

Although Norm Coleman’s campaign is not a party in the lawsuit, that didn’t stop his legal team from weighing in on the matter. Attorney Fritiz Knaak countered that Ramsey County rightfully determined that such data is private under state law. “Our paramount concern really throughout the process has been ballot security,” Knaak said.

Although Judge Lindman did not immediately issue a ruling on the matter, he indicated that one would be forthcoming by the end of the day. Lindman seemed inclined to favor the Franken campaign’s legal reasoning, aggressively questioning assistant Ramsey County attorney Darwin Lookingbill on why the envelopes containing the invalidated ballots shouldn’t be public data. “Shouldn’t they be entitled to look at the envelope?” he asked at one point.

The Franken campaign has requested information from all 87 counties in order to discern whether ballots were improperly rejected. On Monday it issued a legal brief highlighting four cases where it believes voters were wrongly disenfranchised. Despite the Coleman team’s legal stance, it has made an identical request of local election officials. According to Knaak, only 14 jurisdictions have so far complied and two of them subsequently expressed misgivings about providing the data.

Even if the Franken campaign prevails on the public records issue, it likely faces an uphill battle in convincing the statewide canvassing board to examine the purged ballots. In a ruling issued yesterday, the Minnesota Attorney General’s Office indicated that it believes those ballots should not be considered in the statewide manual recount that got underway this morning.

Whatever the outcome of the current legal dispute, it seems unlikely that this will prove to be the final visit to a courtroom by the dueling campaigns.

Photos: Al Franken, courtesy of Aaron Landry. Norm Coleman via WDCpix.com