Norm Coleman won another tactical victory as judges presiding over his election contest against Democratic challenger Al Franken ruled that some 1,500 absentee ballots should be inspected, and possibly counted.
If the inspection reveals the ballots were lawfully cast, the panel would then order them to be added into the current vote totals. Unofficially, Franken is clinging to a razor-thin margin of 261 votes out of nearly 3 million cast.
The 1,500 ballots are absentee votes that were rejected because the person who cast them was not listed as a registered voter. From weighing and examining the envelopes, however, election officials believe some of them contain actual voter registration cards, which would then make those voters eligible to have their ballots counted.
Both Coleman and Franken had identified so-called “ballot-secrecy envelopes” that they wanted opened, and both sides expressed satisfaction with the judges’ ruling. But the Thursday ruling is more important for Coleman because he needs large blocks of additional votes to be counted if he hopes to close the gap with Franken. It is not clear based on the precincts involved whether those ballots are likely to contain more votes for Franken or Coleman.
In another sign of progress for the Coleman legal team, the three-judge panel decided to reverse an earlier ruling and allow Republican Election Judge Pamela Howell’s testimony.
Howell testified that she witnessed an error on Election Day that could have led to the double-counting of ballots for Franken, a central element of Coleman’s case.
“’Oh no, we forgot to label the ballots,’” Howell said she heard a fellow election worker exclaim. Ballots that won’t feed through a scanning machine sometimes must be labeled an either original or as a duplicate, to avoid having the same ballot counted twice.
“We looked at each other, and the thought ran through my head as to what can we do retrieve or label or whatever. And at that point they were mixed up with the others. Some were already in the ballot box. There was nothing we could do to fix it, and the conclusion was we needed to get rid of them on the incident log.” Howell said she was “concerned and troubled that the error had been made.” She added that during the recount “things would not match up numerically.”
The Coleman team has pointed out that for several precincts, the number of ballots counted during the recount exceeded the number of voters who appeared to cast ballots on Election Day.
Howell’s testimony still could be disallowed by the court, however. During further testimony Friday, Howell disclosed that Coleman’s attorneys had sent her an e-mail in an apparent effort to delay knowledge of her testimony from reaching the Franken’s lawyers.
"Pam,” stated a Jan. 6 e-mail to Howell from a Coleman lawyer, “the legal team and campaign have made a strategic litigation decision to hold off from having you sign and us file your affidavit at this time, to avoid tying you down to any particular testimony and to avoid having to disclose your name and statement.”
Coleman attorney Joe Friedberg apologized profusely that the e-mail exchanges had not been disclosed to the court. He said he had been unaware of them. He added the e-mails should not be viewed as an indication that Coleman’s attorneys were trying to withhold evidence from Franken’s legal team.
Franken attorney David Lillehaug pounced on the oversight Friday.
He asked the court not only to strike Howell’s testimony from the record, but also moved that the entire Coleman claim of double-counting of ballots should be denied. The panel said it would take that motion under consideration. The judges are expected to rule on whether Howell’s testimony will be allowed late Friday or Monday.
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