m3017 BC-MN-MinnesotaSenate 6thLd-Writethru 04-07 0862

Absentees boost Franken; appeal looms

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Associated Press Writer


ST. PAUL, Minn. (AP) — While vowing to press ahead, Republican Norm Coleman’s re-election fortunes slid further in reverse Tuesday as Democrat Al Franken widened his lead to 312 votes in their overtime Minnesota Senate race.

A few hundred previously rejected absentee ballots were opened and counted at the tail end of Coleman’s lawsuit contesting his loss in a statewide recount. They broke almost 2-to-1 for Franken to pad his 225-vote lead.

Outside the courtroom, Coleman attorney Ben Ginsberg minimized the new margin because his side was certain to appeal to the Minnesota Supreme Court.

"What happened today in the sphere of this election is really inconsequential," he said. "There’s a much larger universe of ballots that should be opened."

The judges have yet to settle some claims in Coleman’s lawsuit over the recount, but the absentees were the key issue that could have given the former senator enough votes to overtake Franken. And the results kept Coleman in a downward spiral.

Since Nov. 4, Coleman has surrendered more than 1,000 net votes to Franken — first as local officials reconciled their election-night tabulations, then during the exhaustive hand recount where he lost the lead and now through his court case.

Top Franken attorney Marc Elias said he doubted an appeal would change things.

"The problem that former Senator Coleman has is he lost fair and square," Elias said. "He lost because more people voted for Al Franken than voted for Norm Coleman. No amount of lawyering or sophisticated legal arguments is going to change that."


The appeal must come within 10 days after the final order from the three-judge panel that presided over the seven-week trial.

Ginsberg said he hopes the high court would reinstate as many as 4,800 absentee ballots rejected by local officials. He said the lion’s share of those come from strong Coleman areas.

In sketching out the appeal, Ginsberg argued that some counties allowed ballots of voters who substantially complied with the law while others held voters to a tougher standard. The court required absolute compliance, which Ginsberg said led to unequal treatment of ballots in violation of the constitution.

In rulings throughout the case, the judges stressed that absentee voting was a privilege, not a right, and therefore held to a higher standard in the interests of fraud prevention.

Secretary of State Mark Ritchie, a Democrat, said he would welcome an appeal, saying he thinks the state’s highest court could provide closure. Ritchie added that once those justices rule, an election certificate should be issued.

Ritchie must countersign a certificate that originates in Republican Gov. Tim Pawlenty’s office. Pawlenty has said he’ll await direction from the courts before granting the certificate and he has left open the possibility of deferring one if the federal courts get involved.

Tuesday’s counting of ballots in open court represented the first new votes added to the race since the recount ended in early January.

High security was in place before the count began, with a metal detector to screen visitors and at least eight security guards. Attorneys and spectators flowed freely in and out of the courtroom on all other days of trial.


Neither Franken or Coleman attended.

The courtroom was golf-course quiet as officials from the secretary of state’s office sorted the envelopes with voters’ names on them and pulled a blank secrecy envelope from inside. All were put into a cardboard box and mixed together before the enclosed ballot was extracted, part of an effort to preserve voter privacy.

Then came the prosaic, 45-minute reading of the votes by state Elections Director Gary Poser. "Franken, Franken, Franken, Coleman, other," he said in one string.

In all, Franken picked up 198 of the votes to Coleman’s 111. The remaining 42 were for third party candidates, left blank or ruled invalid for another reason.

When the trial of Coleman’s lawsuit began in late January, his attorneys acknowledged that absentees were the critical element. At the close of trial, he was hoping 1,360 would be included.

The pending issues in Coleman’s suit include a request to invalidate votes from a Minneapolis precinct where ballots were lost between Election Day and the recount. A state board previously decided to rely on the machine count for the precinct.

Coleman also claimed poll workers made mistakes when making duplicate copies of damaged ballots. The error could have put both versions in the recount.

Combined, the matters could mean a swing of 100 votes.

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