Associated Press
ST. PAUL — In a blow to Democrat Al Franken, a state board ruled Wednesday that absentee ballots rejected by poll workers won’t be included in Minnesota’s Senate recount.
The five-member state Canvassing Board denied a request by Franken’s campaign to reconsider absentee ballots it claims were excluded from the initial vote count because of signature problems or other errors attributable to the voter. Republican Sen. Norm Coleman’s campaign maintained the board lacked power to revisit those ballots.
It wasn’t a complete victory for Coleman. The board left open the possibility of examining ballots that were set aside for errors outside of the voter’s control.
Statewide, Secretary of State Mark Ritchie estimated about 12,000 absentee ballots were rejected for various reasons — some legitimate, some not. That represents between 4 percent and 5 percent of all the absentee ballots cast in the election.
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Franken entered the recount trailing Coleman by 215 votes out of 2.9 million ballots. About 80 percent have been recounted and Coleman has maintained a lead throughout. However, there are about 3,600 ballots the two campaigns have challenged that could fall to the board to rule on.
Franken’s campaign had made the push to factor in rejected absentee ballots a key link of its recount strategy, even going to court to force county officials to turn over data on voters whose ballots didn’t count.
Marc Elias, the legal chief for Franken, said the campaign won’t appeal the board’s ruling. But for the first time since the recount began a week ago, he publicly mentioned the possibility of the campaign asking the U.S. Senate to weigh in.
"Whether it is at the county level, before the Canvassing Board, before the courts or before the United States Senate, we don’t know yet. But we remain confident these votes will be counted," Elias said.
The board’s action drew a response from the Senate’s top Democrat, Majority Leader Harry Reid. In a written statement, he called the decision a "cause for great concern."
"As the process moves forward, Minnesota authorities must ensure that no voter is disenfranchised," Reid said. "A citizen’s right to have his or her vote counted is fundamental in our democracy."
The Coleman team issued its own statement in which campaign manager Cullen Sheehan said he objects to the notion of Senate involvement.
"This is a stunning admission by the Franken campaign that they are willing to take this process away from Minnesotans if they fail to win the recount," Sheehan said. "It is even more stunning that the Democratic Senate leader would inject himself into the Minnesota election process."
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The board’s unanimous voice vote followed a discussion where some members expressed frustration that some ballots were disqualified improperly. But even they acknowledged the matter fell outside the board’s duties. Two Supreme Court justices, two district judges and the secretary of state make up the board.
"We’re not in a courtroom and we need to keep that in mind," said Ramsey County District Judge Edward Cleary.
Supreme Court Justice G. Barry Anderson made the motion to deny the Franken request on grounds that such a review would have to wait for a court challenge that is likely to follow the recount. The loser can file what is known as an election contest.
"Irregularities, if any, in the handling of those absentee ballots can be addressed in the election contest process provided by law," Anderson said.
The board gave Franken a glimmer of hope after voting his motion down. Members agreed to seek legal advice and meet again soon to decide whether local election officials should sort through the rejected ballots. That would help determine whether any that were actually accepted didn’t get counted and whether any rejections fell outside the rules for disqualification. But the board didn’t address what would happen with those ballots.
Coleman attorney Fritz Knaak said the campaign would not take issue with the counting of absentee ballots that were wrongly disqualified or overlooked, but said he thought that such ballots comprised "an extraordinarily small number."
The panel also encouraged the campaigns to voluntarily whittle down the challenge pile. The tit-for-tat challenging has escalated by the day, including some challenges where voter intent is obvious and no other ballot deficiencies are apparent.
Both campaigns have said they would consider withdrawing some challenges before a Dec. 16 meeting where the board will start ruling on challenges.
