Tags: frankens | lead | increases

Franken Lead Surges, Coleman's Hopes Dashed

Tuesday, 07 Apr 2009 01:13 PM

By David A. Patten

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GOP Sen. Norm Coleman’s hopes of winning re-election were all but dashed Tuesday before the three-judge panel hearing his election contest against Democrat Al Franken, as the long-awaited counting of absentee ballots actually increased Franken’s lead over Coleman from 225 votes to an unofficial lead of 312.

The final tally of the absentee ballots opened Tuesday was 198 for Franken, 111 for Coleman, and 42 to other candidates.

The outcome appeared to make Franken the de facto winner of the election contest, barring a successful appeal. Coleman attorney Ben Ginsberg immediately announced that Coleman will appeal an adverse verdict by the panel to the Minnesota Supreme Court, as had been widely indicated.

“The court is wrong in its decisions thus far,” Ginsberg said tersely after the panel accepted the new votes and took a recess. “We will appeal those rulings.”

Onlookers watched in a hushed Minnesota courtroom just after noon Tuesday as officials reviewed each ballot and declared whether it was for Franken or Coleman.

As the litany of mostly Franken votes piled up, it became clear that Coleman would not garner the margin needed to make inroads on Franken’s lead.

Coleman suffered one setback even before the counting began. The panel originally identified 400 ballots that would be counted, compared to the 1,388 that Coleman’s legal team asked for it to tally.

Late Monday, Minnesota’s deputy secretary of state, Jim Gelbmann, announced that 13 of the 400 ballots had already been counted at earlier stages of the election. That reduced the pool of votes to 387.

Then on Tuesday, 36 of the remaining ballots were found to be defective. That narrowed the pool further to 351, according to TheUpTake.com, which carried the counting of absentee ballots live via the Internet.

The absentee vote tally does not necessarily mean all hope is lost for the Coleman campaign. His legal team has filed a motion to dismiss about 133 Minneapolis votes that were recorded on machines – votes that do not have paper-ballot backup because the actual ballots were lost.

It is important to note, however, that some of those votes were actually cast for Coleman. So if Coleman wins his motion, his net gain is only expected to be about 44 votes, leaving him far short of his objective.

Coleman has also objected to the accidental double counting of ballots that apparently occurred in some Minneapolis precincts. Those ballots are generally though to number fewer than 200.

It is believed if Coleman won both of his motions, he would only gain about 100 votes.

The fact that the number of ballots under dispute appears to be fewer than the gap between the two candidates could be interpreted to mean that Tuesday hearing effectively designated Franken the de facto winner of the election.

Franken lead attorney Marc Elias reacted to Tuesday’s events with glowing praise for the integrity of the Minnesota election process.

Coleman still has several options. After the panel decides how it will rule on the outstanding motions, it will issue a final order declaring a winner.

From that point, the losing candidate will have 10 days to file an appeal of the panel’s finding to the Minnesota Supreme Court. Legal scholars are somewhat at odds over whether a state Supreme Court ruling would require state officials to issue a certificate of election to the winning candidate at that point.

Several Republican senators are urging Coleman to continue his appeals to the federal court system, and possibly all the way to the United States Supreme Court.

Sen. John Cornyn, the head of the Republican Senatorial Committee, has warned that any attempt by Democrats to seat Franken before a federal appeal has a chance to reach the U.S. Supreme Court would result in “World War III.”

Sarah Cherry, an independent legal expert observing the election contest for Ohio State University’s Moritz College of Law, says lawyers disagree over the point at which a certificate of election should be issued.

“Some argue that the election certificate cannot be issued until ALL appeals -- state and federal both -- are completed,” Cherry tells Newsmax. “But I and many others think it is likely the law provides for the certificate to be issued when the state court proceedings are completed.”

Lead Franken attorney Marc Elias reacted to Tuesday’s events by lavishing praise on the integrity of Minnesota’s election process and on the three-judge panel. He said Coleman’s appeal is “non-meritorious” and stated outright that the people of Minnesota had elected Franken as their senator.

Coleman’s attorneys say they have geared their entire strategy to winning on appeal. They maintain that due to flawed electoral procedures and rulings in Minnesota, a successful appeal is quite feasible.

Coleman attorney Ben Ginsberg called the panel’s March 31 decision to count fewer than 400 votes “an unprincipled decision that is not supportable by the law.” Ginsberg indicated it made the obstacles to a Coleman comeback during the panel stage of the election contest almost insurmountable.

“We were pretty confident that with 1,388 ballots, if they had been opened, we would have prevailed. It’s still a mathematical possibility, but it’s probably akin to you winning your NCAA bracket pool at this point,” Ginsberg said shortly after that ruling was announced.

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