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A day after clearing the way for Norm Coleman to take his challenge of the U.S. Senate recount to trial, a three-judge panel Friday dealt a setback to his effort to find evidence to support his claims.
The judges denied Coleman's bid to conduct an expansive new inspection of ballots around the state for evidence that many were improperly counted or wrongly rejected during the recount.
Coleman, a Republican, and his DFL opponent, Al Franken, "already viewed the ballots during the recount process," the judges wrote. "Given that the trial of this matter must begin ... the court is not convinced that another inspection of the ballots is efficient or needed to prepare for trial."
The panel on Friday also was considering Coleman's request to automatically count at least 4,500 absentee ballots that he contends were wrongly rejected. If they refuse, Coleman would need to call witnesses and offer evidence at trial to back up his claims that those ballots should be counted.
Coleman has the burden of proving his claims at the trial, known as an election contest, to overturn the action of the state Canvassing Board that certified a recount giving Franken a 225-vote lead.
Coleman's case initially centered on claims that 654 absentee ballots from mostly Republican areas were wrongly rejected, that perhaps as many as 150 votes in predominantly DFL areas were counted twice and that the handling of 133 missing ballots in Minneapolis gave Franken a boost.
But this week he cast a wider net for votes, asking the court for permission to inspect the envelopes of all rejected absentee ballots in the state -- as many as 11,000 -- to see whether they were improperly rejected and to review other ballots that may have been double-counted or missed in 86 precincts.
He proposed that teams of three inspectors -- one from each campaign and a nonpartisan -- review ballots in those precincts and that counties send the absentee ballots to the secretary of state for inspection by other teams. While Coleman legal spokesman Ben Ginsberg said the inspection could be completed in a few days, Franken lawyer Marc Elias called it a long-shot search for votes that would be nearly impossible to finish before trial and costly to counties.
After the panel's ruling denying the pretrial inspection, Coleman recount lawyer Fritz Knaak said, "We're going to have to develop our case in court." Tony Trimble, another Coleman lawyer, said the ruling meant the campaign would call election officials and others for testimony in their case.
In their request to automatically include 4,500 rejected absentee ballots, Coleman's lawyers argued Friday that those ballots resembled 933 others that were eventually accepted by the Canvassing Board. They said 857 of the 4,500 ballots were rejected because local election officials attached preprinted stickers with the voter's name that obstructed a portion of the envelope instructing the voter to sign. Another 174 were rejected, they said, for being late even though there was no clear evidence.
Another 830 absentee ballots were rejected because local election officials decided the voter's signature didn't match the signature on the ballot application, but the Coleman campaign believes they may be the same.
Elias called the Coleman argument for counting the rejected absentee ballots "truly Alice in Wonderland" because it assumed "scales of errors that is unprecedented" by local elections officials.
The court was not expected to rule until Monday on the Coleman motion.
After the hearing, the Coleman campaign filed a class-action lawsuit in behalf of the roughly 11,000 absentee voters whose ballots were rejected, arguing that their votes should be given the same consideration as the 933 approved by the Canvassing Board.
The move could give the campaign another method to explore rejected ballots as well as reinforce its claim that the recount process may have violated the equal protection clause of the Constitution, an argument Coleman could bring to the U.S. Supreme Court.
Elias called the suit "a gimmick."
It is unclear how long the trial will run, but the panel has indicated a desire to move quickly.
Pat Doyle • 651-222-1210