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Brian Bakst, Published March 13 2009

Minnesota Senate case moves into the judges' hands

ST. PAUL (AP) — Minnesota's tight and tardy Senate race moved Friday into the hands of three judges who will consider whether Republican Norm Coleman proved enough flaws in the election to lift him past Democrat Al Franken.

More than four months beyond Election Day, attorneys for both men delivered closing arguments in a seven-week trial that has painstakingly dissected the closest Senate election and largest recount in American history. Franken leads Coleman by 225 votes out of 2.9 million cast.

"We start with a case that is a statistical tie," Coleman lawyer Joe Friedberg said at the outset of his hourlong closing.

The trial had 134 witnesses and 2,182 exhibits during 35 days in court. The binders and copies "piled up like snowdrifts on the bookshelves, tables and floors of this courtroom," as Franken lawyer Kevin Hamilton put it.

The three judges hearing the case are under no deadline to reach a decision. They began deliberating Friday, but were expected to get more filed submissions from the lawyers early next week.

While Coleman's lawsuit covered several grounds, most of the case dealt with rejected absentee ballots. Both sides argued that some were wrongly rejected by local election officials and should now be counted.

The task for the judges is to determine which will get in — and what standard of evidence they'll accept. They've got hundreds to consider.

Hamilton pressed for a strict reading of state law. He said Coleman mostly failed to prove that voters with rejected ballots were properly registered, had a qualified witness, put their signature on the ballot and didn't otherwise vote.

"To put it charitably, the contestants' advocacy has rather dramatically outrun their evidence," Hamilton said.

Coleman's side gave the court a list of 1,360 rejected ballots it believes to be valid, a stack one-third the size the former senator once pushed for. Hamilton said Coleman's team had proven the vital elements for only six of them. By comparison, Hamilton said his side had shown that 252 of rejected ballots it identified deserved counting.

Throughout the case, Coleman's lawyers argued that counties relied on different standards when evaluating absentee ballots. For instance, some verified the registration status of ballot witnesses while others didn't, leading to higher rejection rates in a few areas.

In rulings made during trial, the judges have adopted narrow guidelines for approving new ballots. Friedberg flatly told them Friday that they were going about it wrong and are demanding more of voters now than most election officials did in November.

Friedberg urged the judges to presume the voters had done all that was asked of them unless there was proof to the contrary.

"All we need to prove, under your strict compliance standard, is that it is more likely than not that inside the envelope dwells the franchise of a proper voter," Friedberg said. "More likely than not."

The case isn't only about adding votes. Coleman's lawsuit seeks to erase some of Franken's because of mistakes during the recount.

More than 40 net Franken votes hinge on how the court treats 132 ballots that went missing in Minneapolis prior to the recount. An envelope they were in was lost, so a state board reverted to a machine tally from Election Night for that precinct.

While Friedberg didn't dispute the ballots once existed, he said they must be disregarded because they couldn't be produced for the recount.

"When you can't count 'em in person, you can't count 'em at all," he said.

Hamilton said other courts have allowed officials to resort to the next best evidence when ballots are lost. Franken, he added, deserves 52 more votes from scattered precincts around Minnesota where smaller numbers of ballots couldn't be found.

Franken also has 61 net votes at stake related to allegedly mishandled ballots in Minneapolis that could have given some people two votes in the recount. Coleman contends that officials failed to put proper markings on ballots that vote-counting machines couldn't read, creating the possibility that the original and replacement ballots made it into the recount.

Hamilton also attacked the claims that vote-counting problems cast doubt on the election and recount. Any problems, he said, were minor.

"No election is perfect. No election has ever been perfect. No election will ever be perfect," he said.

Stearns County Judge Elizabeth Hayden, who sat on the panel with Hennepin's Denise Reilly and Pennington's Kurt Marben, hinted it could take some time to determine which ballots to open and ultimately who got the most votes. In announcing a decision on the admission of evidence Friday morning, Hayden said the panel is proceeding carefully.

"We have tried very hard not to make rulings in haste," she said.

The loser can appeal the court's verdict directly to the state Supreme Court.

Franken didn't attend closing arguments. Coleman, a fixture for most of the trial, sidestepped questions afterward about whether he'd appeal a loss.

"Let's deal with this step right now. There are a lot of votes to be counted. I'm not looking forward, I'm looking right now to see what happens," he told reporters outside the courtoom. "We've made a case, a very strong and compelling case."

Copyright 2009 The Associated Press.