In the play, "Waiting for Godot," the title character is off-stage and, while talked about constantly, never actually makes an appearance on-stage. The first four days of the Minnesota Election Contest has been a little bit like the play.
After an aborted attempt to introduce altered copies of absentee ballots on Monday (with nobody able to explain the alterations), the Coleman campaign has been forced to spend trial time talking about those absentee ballots which remain out there waiting to get to St. Paul to take center stage in the trial. On Tuesday and Wednesday, we had absentee voters testify that they believed that their ballots were erroneously rejected. Of course, since we don't yet have any of the actual rejected absentee ballots, there is no proof that any of the ballots of those voters was actually rejected. At the end of the day Wednesday, for all of today, and for at least part of Friday, we have had the opportunity to hear from election officials about how the process of elections work.
While Coleman wanted to use Mr. Gelbmann from the Secretary of State's Office to prove its equal protection claim in his testimony on Wednesday and Thursday, they merely succeeded in proving how frivolous the claim actually is. Yes, part of the standards do involve judgment calls, but that doesn't create an equal protection claim. I can't see any state court in the country holding that, because an election clerk in some remote county did not correctly apply the law, the equal protection clause requires ignoring the law.
Instead, Gelbmann became a witness as to the tactical shifts of the candidates as to which ballots should be counted and what rules should be followed in determining which ballots to count. This testimony might mean something to the media following the trial, but it should mean squat to the panel of judges. Their task under Minnesota law is to determine who got the most legally valid votes, not to award the Senate seat based on "gotcha" rules of legal procedure, as valuable as those rules are in other types of disputes to promote early resolution of cases.
The other witness today was Joe Mansky. A hint to the Coleman "attorneys" -- as head of the office, Mansky could serve as custodian of records for Ramsey County election materials, allowing you to actually get real official copies of voting materials into the record. For the most part, this testimony was designed to unsuccessfully demonstrate how to determine if votes are being double counted. As anyone who has seen Joe Mansky throughout this process will have observed, Mansky is very protective of the volunteers who work elections. During the recount phase, he was constantly quoted as saying how he thought that none of the challenges would be successful. Of course, some of the challenges were successful. Needless to say, Mr. Mansky is not the type of person who you could expect to acknowledge that his volunteers did something that could lead to ballots being double counted, and he apparently didn't.
So where does this leave us as the week nears an end. Still waiting for Godot. Until the judges actually get to see the election materials, all of this testimony is sound and fury signifying nothing. The attorneys (at least the Coleman attorneys) seem to have forgotten that this case is about who has the most valid votes. Testimony about the unfairness of the rules on absentee ballots do not justify a court making up its own rules. At some point, the judges are going to look at each questioned ballot and then ask the parties to prove why it should or should not be counted under the laws of Minnesota.
The panel has said that it wants suggested findings of fact at the end of each week's testimony (or at least prior to the start of the following week). Unless something major happens with Friday's testimony, I don't know what you say in the findings other than witness's X ballot should have been rejected, witness Y's ballot could have been validly rejected, and we don't know if there were grounds to reject witness Z's ballot. Since we don't know if any of them were rejected, we can't say if that proves the right decision was made by an election judge or the wrong decision was made. Maybe we need some teamsters and longshoremen to head up to Minnesota and get these ballots packed and delivered immediately.
In the play, "Waiting for Godot," the title character is off-stage and, while talked about constantly, never actually makes an appearance on-stage. The first four days of the Minnesota Election Contest has been a little bit like the play.
