By Brian Bakst
Associated Press
ST. PAUL — Democrat Al Franken, locked in a tight Senate race headed to a statewide recount, sued Thursday for access to data on voters who had their absentee ballots rejected.
Franken’s lawsuit was filed in Ramsey County District Court, but his campaign is hoping that a ruling in their favor would be applied statewide.
Franken trails Republican incumbent Norm Coleman by 206 votes in unofficial results.
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"We are not suing to have these in the count," said Franken’s lead attorney, Marc Elias. "We are simply looking for the data so that we can identify people who were legal and lawful voters to ensure their ballots are counted."
Without making the details available, Franken’s court papers say, "neither the candidates nor the public can tell whether a ballot should be accepted or denied. Nor is it possible to gather additional evidence that might be necessary to establish a ballot’s validity."
The data might only be useful in a future lawsuit, since it’s not clear that ballots found to be improperly rejected could even be used in the recount administered by state election officials.
Elias, a Washington-based attorney who was general counsel to John Kerry’s 2004 presidential campaign, argued that the state canvassing board could rule them eligible. Under questioning, he didn’t point to a specific law that allowed for that step.
On Wednesday, Democratic Secretary of State Mark Ritchie said a voter with a rejected ballot or a campaign would have to go to court to contest the election for such a remedy — a process he said would fall outside the recount and canvass process.
"That’s a judicial process and we’re not part of that," Ritchie said Wednesday. "We’re an administrative process."
Coleman campaign manager Cullen Sheehan said the court should reject the lawsuit to protect the privacy of voters and to keep invalid ballots from influencing the outcome.
"This tactic is simply designed to shove more rejected ballots into the ballot box before the recount takes place next week," Sheehan said in a written statement. "The legal action filed by the Franken campaign today is a classic scheme to re-write the election laws to rig the system in their favor at the expense of the Minnesota voters."
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Franken’s advisers couldn’t say how many rejected ballots exist. Communications director Andy Barr said the campaign has filed data requests with all 87 counties with some providing the data and others turning the campaign down.
In court papers, the campaign said the law cloaking the identity of absentee voters is in force only "until the close of voting on election day."
Ramsey County’s election chief is named as the defendant. Darwin Lookingbill, director of the county attorney’s civil division, said the law provides access to the list of all those who voted absentee, but it doesn’t require officials to break the roster down for those who had a ballot rejected.
The campaign previously asked elections officials in Minnesota’s largest county, Hennepin, to pull 461 rejected absentee ballots into its count. The request was turned down.
Statewide, elections officials were expecting 12 percent of people to vote absentee this year.
Absentee ballots can be rejected for different reasons, such as a signature on a ballot that doesn’t match the one on file with the county.
Elias said the Franken campaign has already investigated the case of an 84-year-old woman in a Beltrami County nursing home. He said her ballot was rejected because of inconsistencies in the signatures, but the woman told the campaign that the difference could stem from a recent stroke. Later Thursday, the campaign backed away from the example, saying the woman’s ballot had been rejected for a reason unrelated to her own signature.
The lawsuit includes a request for swift consideration.
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The canvassing board is due to meet Tuesday to certify the results, and the recount is scheduled to start the next day.
