Senate trial turns into primer on election mechanics

Deputy Secretary of State Jim Gelbmann now knows how it feels to be the main course on Joe Friedberg's rhetorical grill. The trial attorney, now on Norm Coleman's legal team, made a name for himself slicing and dicing witnesses in criminal cases and turning up the heat.

Wednesday in Saint Paul it was Gelbmann's turn to be peppered with questions for hours about how Minnesota's elections work, and how the Secretary of State's office conducted the recount in the disputed Senate race between Coleman and Al Franken.

Friedman's trying to build a case that not all of Minnesota's 286,000 absentee ballots were treated equally on November 4th, because different counties applied different standards for accepting and rejecting them.

He also contends local election officials employed different rules when they took a second look at 12,000 rejected absentees, which were not opened or counted on Election Day.

"People whose votes should've been counted," Friedberg asked Gelbmann, "In your expert opinion have those voters been disenfranchised?"

"That is absolutely correct, yes," Gelbmann replied.

The three-judge panel hearing Coleman's election contest agreed to review the absentees, in essence to double check to work of local officials. This would conceivably achieve their goal of having one standard guide them as ballot referees.

"And what was absolutely the most important thing about Mr. Gelbmann's testimony today," Coleman attorney Ben Ginsberg remarked, "Is he said there remain uncounted, wrongly rejected absentee ballots out in the various counties."

Gelbmann went into great detail about how local officials conducted their reviews of those ballots. At the State Canvassing Board's urging, local election officials around the state identified 1,350 absentee ballots they believed were disqualified by mistake.

"Mr. Gelbmann verified these election officials are professionals," Franken campaign attorney Marc Elias told reporters, "The Coleman campaign wants to denigrate the jobs these election officials did; these folks worked day and night through the recount, looked at these ballots over and over and over again."

The Coleman campaign in December asked the Supreme Court not to allow any of those ballots back into the mix, arguing there was no precedent for counting new votes after Election Day. The high court agreed to allow some of those wrongly rejected ballots to come back to life, but only in those cases where both campaigns agreed.

That judging process led to 933 ballots being opened and counted, which padded Al Franken's recount lead from 49 votes to 225. The Coleman campaign has since reversed field and is seeking to revive at least 5,000 of those rejects.

"There is still out there in Minnesota a large number of disenfranchised voters," Ginberg said, "And what this three-judge court has the power to do is to count their votes."

Elias said the Franken campaign will insist that the local elections officials who made the original decisions on those ballots be called into the courtroom to provide their rationale.

"There are stories behind all these ballots," Elias argued, "And the only way to judge these stories is to allow the auditors, these nonpartisan election officials tell these stories."

"Why did I reject this? I rejected it because of this reason, which may or may not be evident on the face of the ballot."

Ginsberg said that won't be necessary because if local officials made a mistake by rejecting a ballot it speaks for itself.

Getting up to speed

Those who covered the ongoing saga have become overly familiar with the glossary of specialized terms; duplicates, challenges, identifying marks, missing ballots, found ballots, optical scanners, rosters and etcetera.

The judges, who were clearly busy with court cases in their home counties during the recount, have asked a lot of background questions. At one point Judge Denise Reilly asked Gelbmann to explain the duplicate ballot process.

Gelbmann explained that election judges, one from each party, create a duplicate if a damaged absentee ballot can't be fed through the ballot counting machines. Ballots e-mailed overseas, printed there and returned to local counties must also be duplicated into a format that can be fed into a scanner.

"Judges are supposed to carefully mark these as 'Original number one' and 'Duplicate number one' so we can compare them later if there's a question," he said.

He lamented that not all local election judges did that in every case. The Coleman campaign suspects some unmarked duplicates made it to the recount table along with their matching originals, resulting in double counting. They want the originals pulled from the stacks in those precincts and only the duplicates counted.

Before the recount began the Coleman campaign insisted that the originals must be used for the hand recount, because it's easier to judge voter intent with an original and to see if they have any marks that would identify the voter.

A ballot is voided if the voter writes his or her name on it, which an old law dating to the times when people would be paid for their votes and marked their ballots to prove it.

During cross examination from Franken attorney David Lillehaug, Gelbmann said his past work as a campaign manager for Democrat Mark Dayton's 2000 senate race did not affect his neutrality in the his job with the Secretary of State's Office.

When Lillehaug asked Gelbmann who he voted for in the 2008 US Senate race, Friedberg objected. Judge Kurt Marben sustained that objection, so Lillehaug moved on to the next question.

Gelbmann last week told his local paper, the South Washington County Bulletin based in Cottage Grove, he voted for the Independence Party candidate Dean Barkley.

He said he was disgusted with the negative advertising from the two front runners.

By John Croman, KARE 11 News

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