Thursday’s statement by Norm Coleman attorney Joe Friedberg has generated plenty of interest at local blogs and national news sites alike, mainly for his opinion that it’s “probably correct” that Al Franken will come out on top when the three-judge panel hearing Coleman’s Senate election contest rules. USA Today responded by asking, ““When can we call him ‘Sen. Franken?’” And while local media have run matter-of-fact heads for the story — like MinnPost: “Norm’s lawyer: We’ll lose” — one outlet launched its story with a bold proclamation, only to replace it with a blander version within the hour.

Minnesota Public Radio’s headline, “Coleman attorney concedes defeat in recount trial” (seen above on Google News), was quickly replaced this morning with the decidedly less dramatic “Coleman attorney eyes appeal.”

Having gotten to the news a bit late (MN Publius seems to be the first local outlet to link to Hotline On Call’s transcript of the KFAN interview with Friedberg), perhaps MPR was working on a better second-day angle? Or did the campaign contact the station? I asked reporter Elizabeth Stawicki, who only said that “online” writes the headlines. She did not respond to my request for a contact in MPR’s online news division.

Update: Dave Orrick of the Pioneer Press reports that Friedberg made a “clarification” of his statement early Friday afternoon:

He didn’t deny any of what he said on the radio, but emphasized he believes Coleman’s legal strategy has merit.

“I believe that our position of enfranchising thousands of Minnesotans who had not had their ballots counted was, and remains, the proper way to proceed,” Friedberg’s statement reads, in part. It continues, “I feel confident that if the court proceeds with wisdom and with decisions based on the facts, and on the law, that we will succeed in our case.”

Photo: The UpTake

Joe Friedberg, the star attorney who gave the closing arguments for Norm Coleman last week in Minnesota’s Senate trial, predicts his client won’t prevail in the election contest without appealing to the state Supreme Court. When the current three-judge panel rules, Friedberg told a local radio audience, ”Franken will still be ahead and probably by a little bit more (than his 225-vote margin in the recount).”

Friedberg was interviewed Wednesday by Ron Rosenbaum on “The Dan Barreiro Show” on KFAN-AM (mp3, starts at 22:22). A partial excerpt:

ROSENBAUM: Joe, are you done?

FRIEDBERG: Yes (laughing), I’m done.

ROSENBAUM: Let me ask you in a different way. Is Norm done?

FRIEDBERG: Well, I think that we’ve been trying this case with the appeal record in mind, and that’s where we’re going, and it’s going to be a very quick appeal, and then I’ll know whether or not it worked.

ROSENBAUM: Well, when you say quick appeal, are you confident that you are going to lose the case in front of the three-judge panel? By losing the case, I mean Norm ends up with less votes.

FRIEDBERG: I think that’s probably correct that Franken will still be ahead and probably by a little bit more. But our whole argument was a constitutional argument, and it’s an argument suitable for the Minnesota Supreme Court, not for the trial court. So we’ll see whether we were right or not.

The dialogue then veered into the background of the equal-protection argument Coleman’s side has asserted, from its past application in elections that featured racial and ethnic discrimination to the Bush v. Gore case in 2000.

Friedberg said the U.S. Supreme Court didn’t expect that case’s circumstances to recur, “where different standards were applying in different electoral precincts … The court didn’t think they’d ever look at another one. Well, hi. We’re here.”

Later:

ROSENBAUM: In point of fact, our system isn’t capable of handling it, right?

FRIEDBERG: No, because frankly, no matter what happens, nobody will ever know who got the — quote — most votes. Nobody will ever know that. …

ROSENBAUM: So we could still be awhile before this thing gets decided?

FRIEDBERG: Yeah, I think that’s clearly true.

Hat tip: Hotline On Call (via MnPublius).

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.

Photo via The UpTake

The Minnesota senate election contest trial could take a turn today, and you can watch it here live (via The UpTake) starting at 1 p.m. Central Time. Lawyers for Norm Coleman and Al Franken will make their pitches for the court to examine or not examine 4,800 absentee ballots that so far aren’t included in the vote tally. On Tuesday, the three-judge panel spelled out 19 categories of ballots (depending on the circumstances for their rejection) and asked the two sides to weigh in on why they should be included or excluded.

You can’t tell the players without a program, so here are pdfs for the answers they got from Coleman (he says count most of ‘em) and Franken (he says only count a few kinds of ‘em).

Here is video from The UpTake. The live stream of the Senate election contest court hearing on ballot categories should start at 1 p.m. Central Time, Feb. 12, 2008. The judges have promised to rule by Monday morning. 

(UPDATE: The hearing ended and court went into recess at 2:10 p.m. The video below may replay the hearing or other proceedings related to the election contest trial.)

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.

The 171 Maplewood ballots are off the table in the U.S. Senate contest. These ballots were discovered by local election officials in a voting machine during the manual recount and added to the vote tally. Norm Coleman’s legal team initially argued that they should not have been included in the recount, but this morning they withdrew their objection to the contested ballots.

Otherwise it was once again the Jim Gelbmann show throughout the morning at the  contest between Coleman and Al Franken. The Deputy Secretary of State spent his second third day on the stand discussing the vagaries of election law and various categories of contested ballots. He refused to concede that some ballots were counted twice during the recount (as argued by the Coleman camp), and painstakingly explained state rules for protecting the integrity of ballots.

The 133 ballots that went missing from a Minneapolis precinct prompted this exchange between Coleman attorney Joe Fiedberg and Gelbmann:

Friedberg: “The chain of custody is kind of academic in that case, isn’t it? There is none.”

Gelbmann: “For the 133 ballots that is a correct statement.”

Gelbmann is finally done on the stand. The court will reconvene at 1:30, presumably with a new witness.

Friedberg chivalrously escorted Gelbmann through a seemingly interminable series of absentee ballots that were rejected for various reasons in the Nov. 4 election pitting the incumbent Republican Sen. Coleman against Democratic challenger Al Franken. Gelbmann, whom the secretary of state’s office offered up as a witness at the Coleman camp’s request, nimbly recollected individual ballots from around the state like old pals. (Both sides cited his motto, “Every ballot has a story,” to buttress their arguments before reporters after court recessed Tuesday.)

The questioning appeared to take a dramatic turn when Friedberg said, “Let’s go there,” apparently intending to launch a discussion of the controversial Minnesota Supreme Court order that allowed both campaigns to prevent counting of individual ballots that local officials had determined, on review, they had wrongly rejected. But an objection from the Franken side sent Friedberg back to his stack of ballots, though not before getting Gelbmann to agree that the Supreme Court’s order disenfranchised voters.

The dry but congenial back-and-forth got a bit personal when Gelbmann testified that his mother’s Parkinson’s disease made it hard for her to sign her name. That echoed a much more emotional statement by Gelbmann’s boss, Secretary of State Mark Ritchie, who told a Minnesota Senate committee earlier this month that his own grandmother’s tremors prevented her from filling in ovals on ballots.

Gelbmann seemed to be getting more testy — or perhaps simply more tired — as the morning dragged on, addressing Friedberg as “sir” with an edge to his voice that had thus far been mostly absent. Friedberg’s questioning by the end became more pointed as he angled for evidence that Minnesota didn’t offer voters across the state equal protection as they sought to exercise their franchise to vote.

At 11:25 a.m., Franken attorney David Lillehaug began his cross-examination of Gelbmann.

Yesterday the three-judge panel hearing the case ruled that copies of ballot envelopes that Norm Coleman’s legal team intended to enter into evidence weren’t up to snuff. The problem? The envelopes had been written on by campaign staff or notes from local election officials had been redacted. If the Republican’s camp still intends to enter the envelopes as evidence they’ll now have to subpoena the originals from all 87 counties.

The ruling left Coleman’s lead trial attorney, Joe Friedberg, uncertain how to proceed. “We were not prepared to go forward with any other part of the case before next Tuesday,” he told the judges yesterday.

Initially proceedings were expected to be delayed for a half hour. But the trial is yet to re-convene.

Norm Coleman (WDCpix)

This is the end. Or so it would seem.

More than two months after election day, following a manual statewide recount, a trial to determine the winner of the U.S. Senate contest commenced at the Minnesota Supreme Court this afternoon. Norm Coleman is seeking to have the results certified by the state Canvassing Board, showing Al Franken with a 225-vote lead, tossed out. Franken wants to head to Washington.

With Coleman in attendance, attorneys for the two campaigns made their opening arguments before the three-judge panel charged with hearing the case. Joe Friedberg, representing the Coleman campaign, was up first. Displaying a folksy charm honed in dozens of jury trials over the years, Friedberg argued that the election process and ensuing recount were rife with errors that have distorted the outcome.

Most significant are 12,000 rejected absentee ballots, many of which the Coleman campaign believes should have been included in the vote tally. Friedberg argued that the panel must personally inspect the 12,000 ballots in order to determine which ones were improperly rejected. “This is going to be extremely tedious and extremely boring,” he allowed.

Friedberg further argued that different standards were utilized in counties across the state to determine whether an absentee ballots was rejected, comprising a violation of the U.S. Constitution’s equal-protection clause. This is the same argument that prevailed before the U.S. Supreme Court in Bush v. Gore during the 2000 presidential contest.

“We want you to do what the law demands you do under Bush v. Gore, which is level the playing field,” Friedberg said.

Kevin Hamilton, a veteran of the legal battles over Washington State’s 2004 gubernatorial contest, then delivered opening arguments for the Franken campaign. He stated that the process — although not without flaws — was as fair as humanly possible and that the Coleman campaign’s assertions were wildly off the mark. Hamilton insisted that there’s absolutely no justification for tossing out the results certified by the Canvassing Board.

“This is a breathtaking step that should and does require breathtaking evidence,” he said. “At the end of the day the evidence to be presented in this trial falls woefully short of that required to overturn the state canvassing board’s certification.”

With opening arguments completed, a five minute break was taken. Then Coleman’s legal team called its first witness: Coleman campaign staffer Kristen Fuzer. The trial is expected to go on for weeks.

More: Franken-Coleman trial upended by judges’ ruling