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Don Davis, Published March 13 2009

Missing Clay ballots close trial testimony

ST. PAUL – Lori Johnson was a fitting final U.S. Senate trial witness because, like many other issues in the case, she left unanswered the main question attorneys asked.

The Clay County auditor-treasurer could offer no reason why five ballots disappeared from Oakport Township, just north of Moorhead, after the November election. In a way, those five ballots represent the entire 7-week-old Senate trial, with both candidates looking for ballots they can count.

Attorneys for Republican Norm Coleman and Democrat Al Franken are to deliver their closing arguments today, allowing a three-judge panel to consider what to do next.

Coleman brought the case after the state Canvassing Board gave Franken a 225-vote lead out of 2.9 million votes cast. Coleman attorneys took five weeks bringing in voters and elections officials as they tried to find enough uncounted ballots to erase that lead.

Franken’s side used the past two weeks to do the same for its candidate.

Coleman claims 1,359 ballots remain in doubt.

The case has centered on whether thousands of absentee ballots were properly rejected and how many of those actually should be counted.

Franken attorney David Lillehaug questioned Johnson Thursday afternoon about the Oakport ballots.

Rolls at the precinct showed 1,074 voted, but just 1,069 ballots were counted. Johnson said that she and representatives of the two Senate campaigns have looked for them in her election room, and an Oakport official looked in a ballot counting machine to make sure they were not left there.

Elections officials also recounted the precinct’s ballots three times during a November statewide Senate recount, she added.

The Franken total fell five votes from election night to the recount and in an interview Johnson said she has no clue to what might have happened.

Auditor since 1997, Johnson said she never has seen a missing ballot problem like this before – but she also said there has not been such a close and hotly contested election.

Even though closing arguments in the trial are planned for today, there has been no hint about how long the three-judge panel will take to decide the case, and whether the judges will count disputed ballots or they will ask someone else to count them. They could also just throw out Coleman’s case, as Franken’s attorneys have argued.

Even then, legal arguments likely will continue because the loser can appeal to the state Supreme Court. And some observers say the federal court system could be another venue.


Davis works for Forum Communications Co., which owns The Forum. He can be reached at (651) 290-0707 or ddavis@forumcomm.com