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U.S. Senate election trial Judge Elizabeth Hayden listens to testimony during the Monday proceeding in St. Paul. Pool photo by Jim Mone, Associated Press.

Franken opens case looking to protect victory

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By Scott Wente

St. Paul Capitol Bureau

ST. PAUL - Now it is Al Franken's turn.

Franken's campaign started its case in Norm Coleman's U.S. Senate election lawsuit Tuesday. The Democrat hopes to build on his slim, 225-vote victory and become Minnesota's next senator.

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Coleman's attorneys wrapped up their case Monday after spending 26 days trying to show a three-judge panel that the election and as many as 2,500 Minnesota voters did not have their valid votes counted in the Nov. 4 election.

The Franken campaign's arguments are strikingly different than Coleman's. Franken attorneys said they will show over the next few weeks that while some voters' absentee ballots were wrongly rejected and should be counted in the trial, the overall election system was sound.

Franken attorney Marc Elias said their case will include "evidence about the good job that the state of Minnesota did."

"Our evidence about the good job that the hard-working auditors and election-night officials did," Elias continued. "Our evidence about how the system worked, by and large."

Franken's campaign wants roughly 1,600 rejected absentee ballots reconsidered during the trial, though nearly half of those also were highlighted by Coleman's campaign.

Franken attorneys will start by questioning 15 to 20 voters today and plan to call many more voters to testify in the St. Paul courtroom. The campaign also will question county auditors and other election officials. It probably will take between two weeks and three weeks to argue its case, Elias said.

Coleman's campaign used a little more than five trial weeks. In that time, the campaign proved that an "alarmingly large number of Minnesota absentee voters remain disenfranchised," Coleman attorney Ben Ginsberg said.

Also, Ginsberg said, the campaign showed that some votes were counted twice and that local officials applied different standards to similar ballots in different counties.

"We have shown, unfortunately, that the counties use very different standards for judging very much the same ballots, which means that some people were disenfranchised simply because of where they lived as opposed to the way they voted," Ginsberg said.

Not so, said Franken attorneys, who plan to ask the court to dismiss much of Coleman's case for lack of merit.

As it wrapped up its case, Coleman's campaign used testimony Monday from Republican poll worker Pamela Howell of Minneapolis to try to show that some ballots in Democratic-leaning precincts were counted twice on election night as a result of an administrative mistake. The campaign alleges Franken gained about 125 votes as a result of double counting.

The judges said Monday that Coleman will have to pay $7,500 for trial delays caused by problems with Howell's testimony. It was revealed last week Howell has pre-trial communications with Coleman attorneys.

The Coleman campaign raised new doubts about the election results following Monday testimony from state Elections Director Gary Poser, who acknowledged there was a problem with information in the state voter registration database.

That problem could have caused some valid ballots to be wrongly rejected. Ginsberg said that problem constituted "systematic inaccuracies and maybe even corruption" of data compiled by the secretary of state's office. There is no accusation of corruption on the part of a state official, he added.

Deputy Secretary of State Jim Gelbmann said in a statement that Minnesota's election system is one of the best in the nation.

"No matter how good the Minnesota system is, it is not good enough to tell us the accuracy of this count," Ginsberg said.

Franken witnesses could include a Duluth city official who unsuccessfully challenged his subpoena because he wanted more reimbursement money.

The judges on Monday dismissed the request by city Clerk Jeff Cox to avoid testifying unless Franken's campaign pays him more than the standard witness payment. The judges ruled Cox is not entitled to reimbursement beyond what traditionally is given witnesses.

Franken's campaign last week sent Cox a subpoena to testify in the trial. With the help of the city attorney's office, Cox challenged that order, claiming that if he is going to testify, he must be paid much more than the campaign offered.

Franken's campaign gave Cox a check for $105, which included a standard $20 witness fee and mileage. Cox sought more than $1,100, arguing he should be paid for every hour used in relation to the trial and deserves extra compensation for travel expenses.

Attorneys for Franken and Coleman said Duluth's request was unusual.

In their ruling, the judges said that the election trial is a matter of "public concern" and that they must decide which candidate received the highest number of votes.

"The testimony of election officials who have personal knowledge of facts relating to the Nov. 4, 2008 election has proven necessary in making this determination," the judges wrote. "Testifying in an election contest about the election process that he/she supervised is an important part of an election official's responsibilities."

"Due to the public nature of Cox's position and this proceeding, he is not entitled to additional compensation," the court added.

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