By Thursday evening, 93 percent of ballots had been counted in the Minnesota gubernatorial recount, but the State Canvassing Board will meet on Friday to deal with thousands of frivolous ballot challenges made by the team of Republican Tom Emmer, whose lawyer said the number could reach 8,700 by 2 pm today. Dayton’s team withdrew all its frivolous challenges and in a letter to the canvassing board chastised Emmer.Emmer’s frivolous challenges are included in the recount total unlike legitimate challenges, which are set aside for review by the canvassing board.

Meanwhile, the Dayton team announced on Thursday that it is rescinding all frivolous challenges, 42 in all. And in a letter to the canvassing board by Dayton attorney Marc Elias, the campaign accused the Emmer camp of trying to disrupt the recount process.

“This pattern of frivolous challenges by the Emmer campaign is inconsistent with Minnesota law,” wrote Elias. “It is disrespectful of the process and of thousand of Minnesota voters. I respectfully ask the Board to put an end to this irresponsible conduct, bring the recount to an orderly conclusion, and certify the results of this election.”

But on Thursday the Emmer team ramped up its efforts to frivolously challenge ballots. A reporter asked Emmer lawyer Tony Trimble if the canvassing board should look at a small number of ballots even if they didn’t have the 8,770 is would take to overcome DFLer Mark Dayton’s lead.  Trimble said they would get there. The UpTake has video of Trimble’s statements to the press on Thursday.

“The canvassing board would obviously perform its role,” he said. “There will be a large number of ballots. It’s too early to predict how many there will be, but I’m quite confident we’ll have a significant number of ballots, more than the number to make this a substantive review by the canvassing board.”

A reporter asked, “Did you just predict that the canvassing board would get more than 8,770 challenges?”

Trimble replied, “That would be my prediction, of course. That’s why we’re here.”

Another reporter asked, “That means the pace of challenges is going to have pick up significantly.”

“That could happen,” Trimble replied.

He added that politics play a role in the recount process. “Let’s be frank: This is also a political process. So, there’s going to be some of that gamesmanship around. Just like a campaign is a political process. This is an extension of that. It’s for the seating of a governor. So there will be huge emotions, huge efforts expended on each side. Let’s let it play out fairly, cleanly, above board and then we can make decisions.”

Tony Sutton, chair of the Republican Party of Minnesota, told the Star Tribune that the party disagrees with the Dayton letter. “We not doing anything but exercising our right to make sure people are enfranchised, to make sure every vote counts,” Sutton said. “I’m dismayed that Mr. Elias would want to keep every vote from counting. That’s not Minnesota way.”

Elias-Letter –

Marc Elias

If a few weird ballots and premature cries of “stolen election” aren’t enough to suggest Massachusetts’ special election might not be resolved quickly, perhaps this is: Marc Elias, who served as lead attorney for Al Franken’s legal team, has set up shop in the state, just in case.

Elias, who works at the D.C. firm of Perkins Coie, will represent Democrat Martha Coakley. The Republican side includes Daniel Winslow, a partner at Duane Morris in Boston, and Sean Cairncross, a National Republican Senatorial Committee attorney, among others, Politico reports.

Earlier this afternoon, The Plum Line’s Greg Sargent reported that two Cambridge voters received ballots pre-marked for Republican Scott Brown.

Susan Boyle (Wikipedia)

Lawyers of all shapes and sizes crowded a Minnesota Supreme Court hearing today in the squabble over who will be the state’s second U.S. Senator: Norm Coleman or Al Franken. Both sides made oral arguments but, as the state’s sole senator, Amy Klobuchar, had warned there was no “Susan Boyle moment.”

Klobuchar’s comment on CNN Sunday — however sizeist toward the British singer or fat ladies generally — proved true today: It ain’t over yet. 

Even after slightly more than an hour of give-and-take between five Minnesota Supreme Court justices and the Senate contenders’ lawyers, no one involved gave any sure indication as to how the court would rule.

Coleman was present in the courtroom — as he was for much of the seven-week election contest trial, which took place in the same room before a specially formed panel of lower-court judges. His appeal of their decision — that Franken won the election by 312 votes — is what the Supreme Court is considering now.

Speaking to reporters after the hearing, Coleman expressed “hope” that the court would send the matter back to the election-contest judges with instructions to count more absentee ballots he contends should have been counted.

Franken attorney Marc Elias expressed “confidence” the court would rule his client’s way, upholding the result of the recount and election contest and clearing the way for an election certificate to be issued and Franken to take Coleman’s former seat in the Senate.

The matter of an election certificate — very much at issue due to Republican Gov. Tim Pawlenty’s equivocal statements about whether he’ll issue one even after the state Supreme Court rules — wasn’t mentioned in court today.

Earlier this year, Franken tried and failed to persuade the same justices to order Pawlenty to issue him an election certificate, pending the legal resolution of the drawn-out election battle.

The high court — reduced from its full complement of seven justices due to recusals by two who served on the State Canvassing Board that oversaw last year’s Coleman-Franken recount — seemed to attack Coleman’s arguments more strenuously than Franken’s. But that might be expected, since it is Coleman’s lawsuit that is at issue.

And both sides’ attorneys cautioned afterward against reading much into the tone of questions.

Still to come: a report from the scene, with details that might not have been apparent from the live video feed.

Related:
MN Supreme Court hears Franken-Coleman contest

Franken wants the state’s highest court to affirm the ruling by a three-judge panel that he won the U.S. Senate contest by 312 votes and order that he be issued an election certificate immediately.

“For over four months, the citizens of Minnesota have been represented by only one United States Senator, and the effects of this delay are increasingly significant,” the brief reads.

The issuance of the certificate is key because it would almost certainly allow Franken to take his post in Washington, D.C., while any appeals to the federal courts play out. Republican Gov. Tim Pawlenty has equivocated on whether he would sign an election certificate once the state-court process is completed. He told Minnesota Public Radio last month that he would scrutinize the Supreme Court’s ruling and the strength of Coleman’s case before making a decision.

Coleman’s appeal calls on the state’s highest court to remand the case back to the three-judge panel to deal with purported errors in its initial ruling. The former senator’s brief focuses primarily on varying standards utilized by local election officials in determining which absentee ballots would be counted. It argues that the disparate treatment of ballots is a violation of the Constitution’s equal protection clause. Coleman wants at least 1,359 rejected absentee ballots added to the tally. His appeal also argues that 132 ballots that were lost should not be counted and that some ballots were wrongly counted twice.

Franken’s brief concedes that some mistakes were made by local election officials in determining whether to reject an absentee ballot. “There is, however, no evidence that such errors were deliberate or intentional or that they determined the outcome of the 2008 senatorial election,” the brief reads.

The brief also emphasizes the thoroughness of the legal proceedings before the three-judge panel, noting that it heard from 142 witnesses, examined nearly 2,000 exhibits and considered roughly 20,000 pages of legal documents.

“It was their burden to show that Norm Coleman won a majority of the votes,” said Marc Elias, Franken’s lead recount attorney, on a conference call with reporters this afternoon. “He failed to meet that burden and I would say he failed to meet it by a wide margin.”

Elias expressed confidence that Franken will be seated once the state Supreme Court rules. He dismissed recent comments by Republican National Committee chairman Michael Steele expressing enthusiastic support for Coleman to continue the legal fight in federal courts. “I don’t follow closely what he has to say about the law in Minnesota,” Elias said of Steele.

Oral arguments before the state Supreme Court are slated for June 1. Only five judges will hear the case. Justices Eric Magnuson and G. Barry Anderson have recused themselves because they served on the State Canvassing Board that certified Franken the victor.

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.

Here’s Elias on MSNBC’s “Countdown with Keith Olbermann,” April 14:

“We are extremely pleased with the court’s final opinion,” Elias told reporters. “Al Franken won this election fair and square. Al Franken won this election because more Minnesotans voted for him than for Norm Coleman or for any other candidate.”

Elias (pictured) briefed reporters just two hours after his counterpart for the Coleman camp, Ben Ginsberg, vowed to appeal the ruling to the Minnesota Supreme Court. The Republican’s legal team has also hinted that they may try to take the case into the federal courts as well. But Elias pooh-poohed their chances at success.

“It’s extremely unlikely that the U.S. Supreme Court would have reason to take this case,” Elias said, noting that the nation’s top court has only heard two election cases in recent memory. “If former Sen. Coleman chooses to appeal to the Minnesota Supreme Court, I think that will be the end of the road for him.”

Elias was hesitant to give an estimate of when the contest will likely conclude, but he expressed hope that the state Supreme Court will handle any appeal in an expedited manner. “Based on past history I think it will move relatively quickly,” he said. “I think the estimates that are in weeks are more accurate than the estimates that are in months.”

“I think we are done,” Franken attorney Marc Elias told reporters after the counting. “It’s no more complicated than this … More Minnesotans voted for Al Franken than for Norm Coleman.”

Asked about Coleman’s pledge to battle on, Elias said, “I don’t think there is much of a case on appeal, candidly.”

Coleman attorney Ben Ginsberg said he was “saddened and disappointed,” adding that there should have been 10 times more ballots counted — a reference to the Coleman camp’s submission of 4,800 uncounted absentee ballots they wanted the court to review.

“We will be appealing this to the Minnesota Supreme Court,” he said, as soon as the court issues its order based on today’s tally, which in Ginsberg’s estimation could come as early as this week.

Coleman’s appeal will make three claims, Ginsberg said. Voters received unequal treatment under the law when similar ballots received different treatment by local officials in different parts of the state. The election-contest judges issued a “new set of rules” with their Feb. 13 ruling restricting the types of ballots they would review. And those restrictions meant that many ballots cast on Nov. 4 fell into now-illegal categories.

Franken gained votes because in the narrow “universe” of ballots the three-judge panel agreed to review, Ginsberg said, “there were more Franken precincts.”

While his staffers tore into sealed ballot envelopes on the courtroom floor, Secretary of State Mark Ritchie sat in the second row of the courtroom gallery, looking like a man not fully at ease. He seemed happier afterward when he told reporters, “I think we’re getting much closer to the end today. This was an important next step.”

Asked if he saw an impending split between himself and Gov. Tim Pawlenty over whether to sign an election certificate, Ritchie said no. Pawlenty has signaled that he may not sign an election certificate for months — longer than a state Supreme Court would likely take to rule, suggesting a potential conflict with Ritchie. State law says both the governor and secretary of state must sign the certificate.

“I assume we are both going to follow the order of the Minnesota Supreme Court,” Ritchie said. The Supreme Court has said a certificate should be issued “at the end of the state court process.”

In reference to talk of an appeal to the federal judicial system, Ritchie said the U.S. Supreme Court “is not the state court.”

Neither Franken or Coleman was in court today. Coleman, who has made frequent appearances during the course of the seven-week trial, had another engagement, Ginsberg said. But each side’s coterie of attorneys kept their legal-eagle eyes peeled for anything untoward, but no objections or ballot-challenges were voiced.

Here’s what they were watching.

First came two hours of work as a pair of two-man teams carefully removed ballot envelopes from inside security envelopes, then removed ballots from inside ballot envelopes before unfolding and stacking them.

State Director of Elections Gary Poser was ringmaster, announcing each stage of the proceedings and standing at the center of the courtroom overseeing a two-ring circus.

Deputy Secretary of State Jim Gelbmann sat at one table as half of one of the two-man teams. He seemed aware of being in the spotlight, bobbing his head and lowering his shoulders as he expressively pressed down the unruly stack of ballots.

But democracy is messy. Each ballot had just emerged after being folded for five months or more inside two envelopes, and the stack wouldn’t stay flat. Minnesota’s reliance on paper ballots has often been pointed to with pride by state officials. This was the downside.

The only sound — in a packed courtroom that’s usually used by the state Supreme Court — was the rattle and ripping of paper.

When his team’s work was done, Gelbmann wiped the tabletop clean of any paper crumbs.

Several times, an absentee-ballot envelope contained only a loose ballot, not enclosed in the customary security envelope. In those cases, Gelbmann reached for a blank white envelope to serve (for less than an hour) as a substitute security envelope. Then he demonstrated how to moisten an envelope while you’re on camera: Put the flap into your mouth and move it from left to right. Do not stick out your tongue to lick.

Finally Poser took a seat at a broad wooden table to sort the final stack of ballots into piles for Franken, Coleman or “other.”

Franken attorney Elias and Coleman attorney Tony Trimble hovered over Poser from either side, each leaning with his weight on four fingertips pressed into the table top.

A string of more than a dozen uninterrupted votes for Franken within the first 20 counted didn’t bode well for Coleman, who never led in the cumulative total as Poser called out the ballots one by one.

In the end, Poser announced the day’s final tally: Coleman, 111; Franken 198; and other, 42. That’s fewer than 400 ballots because of a mix-up: Some ballots that the judges ordered to be opened had already been counted.

The judges received Poser’s report and court was adjourned. Counting 351 ballots had taken about three hours.

And that was one-ten-thousandth of the effort put forth during the statewide hand recount of 2.9 million ballots at the end of last year.

That recount, as Elias pointed out repeatedly to reporters, ended with the same result as the election contest phase appears to have reached today: Al Franken has more votes than Norm Coleman.

Related: Deputy Secretary of State Gelbmann didn’t vote for Franken: “No misgivings whatsoever”

Norm Coleman (WDCpix)

Norm Coleman’s already grim prospects for prevailing in the ongoing U.S. Senate contest were dealt another significant blow this afternoon. The three-judge panel hearing the case ruled that only 400 rejected absentee ballots should be considered for inclusion in the final vote tally. The contested ballots will be delivered to the Minnesota Judicial Center for examination by the judges at a hearing next Tuesday.

This doesn’t mean that all 400 ballots will ultimately be added to the vote tally. But even if every single one of these ballots were to be deemed valid, the math is ugly for the Coleman camp. To close Democrat Al Franken’s current 225-vote lead, the former Republican senator would need to outpoll him by a 313-to-87 vote margin. But even that scenario isn’t realistic, considering that Independence Party candidate Dean Barkley garnered 15 percent of the vote and likely pulled some votes from the pile of 400 rejected absentee ballots.

“The math is the math,” said Marc Elias, Franken’s lead recount attorney, on a conference call with reporters this afternoon. “Obviously the math is going to be very difficult for former Sen. Coleman and his legal team at this point.”

Coleman’s legal team criticized the order for disenfranchising voters and promised to continue the legal battle. “As a result, this leaves us no choice but to appeal any final decision that includes these errors to the Minnesota State Supreme Court,” Coleman attorney Ben Ginsberg told Minnesota Public Radio.

At the start of the legal contest, Coleman’s legal team gauged the universe of wrongly rejected absentee ballots at nearly 5,000 — easily the largest potential pool of additional ballots in the election contest. But by the close of the seven-week trial that number had been whittled down to 1,360. Franken’s lawyers, by contrast, argued that just 430 rejected absentee ballots should be opened and included in the final tally.

Today’s order makes clear the daunting legal logistics faced by the three judges — Kurt Marben, Elizabeth Hayden and Denise Reilly — over the last two months. The court reviewed more than 19,000 pages of legal pleadings, 1,717 individual exhibits, and testimony from 142 witnesses. “The trial evidence comprised exhibits compiled in three-ring binders that, when stacked, equaled over 21 feet of paper copies,” the order observes.

Tuesday’s examination of the 400 ballots should clear the way for a final ruling by the three-judge panel. But barring an unlikely change of heart from the Coleman camp (and his enablers in Washington), the legal battle will continue. Next stop: the Minnesota Supreme Court.

Franken’s request for an advisory opinion from the Federal Elections Commission — asking whether the Democratic Senatorial Campaign Committee can start its own fund to aid his cause — earned him some new friends.

The National Republican Congressional Committee, the National Republican Senatorial Committee and the Republican National Committee have told the FEC they agree with Franken and the DSCC: National party organizations should be able to raise money independent of the Franken campaign and that of former Republican Sen. Norm Coleman — and independent of the federal limits on contributions to the campaigns’ recount funds.

Franken attorney Marc Elias asked the FEC on Feb. 17 for an opinion within 10 days, citing rising costs from a legal battle “with no end in sight.” He followed up to emphasize the urgency in a Feb. 23 phone call to Cynthia Bauerly, a Democrat from Minnesota now serving as a commissioner on the FEC.

The NRSC had a field day contrasting Elias’ words with Senate Democrats’ vows to seat Franken by April, but in their comments to the FEC the Republican groups cite his phrase without irony.

Asked about the request during an appearance in Minneapolis last week, Franken appeared interested — he has himself, after all, been raising money since the election — but he told the Minnesota Independent he was leaving the details of such matters to his lawyers.