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A state Supreme Court ruling Wednesday narrowed the options available for Sen. Norm Coleman to erase a slim lead held by DFLer Al Franken in the Minnesota election dispute, and Coleman's campaign threatened a court battle that could leave the Senate seat vacant for a month.
The Supreme Court denied a bid by the Coleman campaign to prevent local and state canvassing boards from tallying votes that the incumbent says may have been counted twice. Most of the votes at issue are from DFL strongholds.
The justices said the campaign's claim of double-counted ballots is better resolved in a court hearing where evidence can be presented, instead of by canvassing boards.
The order allows those disputed ballots to remain in the vote totals, at least for now.
"We are deeply disappointed," said Coleman lawyer Fritz Knaak, declaring that the Supreme Court decision "virtually guarantees" that the election will be decided in a court contest and that Coleman's campaign is prepared to wage one.
Knaak said a court fight over the claim of double-counting could begin in early to mid-January, last a month or more, and make it "highly unlikely" that a senator will be seated on Jan. 6, when Congress convenes.
"Minnesota will be unrepresented by one senator in January," Knaak said.
The Franken campaign was jubilant after the Supreme Court ruling and expressed confidence that the election outcome would not be delayed by a court challenge over those ballots.
"We win in Supreme Court," Franken spokesman Andy Barr said after the release of the 5-0 opinion written by Justice Alan Page. "The process can move forward despite attempts to halt its progress and cast doubt on the result."
Coleman had argued that 130 to 150 ballots, mostly in Minneapolis and other DFL areas, may have been tallied twice during a recount of the election.
"It will be the [court] stage now that we must resort to if those become the margin of victory for Franken," said Coleman lawyer Tony Trimble.
Franken holds an unofficial lead of 46 votes. The Coleman campaign will know how critical the contested 130 to 150 votes are when the state Canvassing Board counts the absentee ballots that were mistakenly rejected during the election.
In a second ruling that it issued on Wednesday, the court allowed additional time for identifying and counting mistakenly rejected absentee ballots. That tally is now due by Jan. 4.
The Coleman argument
The Coleman camp's claim that some votes were counted twice involves damaged ballots that couldn't be fed into voting machines on Election Night.
In those instances, election officials are supposed to make duplicates that can be machine-counted, then match the copies with the originals. But during the Senate recount, originals were sometimes found without matching duplicates.
Coleman attorney Roger Magnuson told the Supreme Court this week that those discrepancies indicate that some ballots probably were counted twice -- first when duplicates went into machines on Election Night, and again when the originals were tallied during the recount.
"This particular issue may decide the entire election," Magnuson told the court Tuesday. He asked the court to block the state Canvassing Board from finalizing the results of the recount and to order local election officials to reconcile the number of voters with the number of ballots cast and eliminate any twice-counted ballots.
But during arguments, several justices raised questions about the conclusion that double counting occurred and raised the possibility that election officials may have simply neglected to make duplicates or failed to enter them into machines.
"Can't we assume that the election judge simply forgot to create a duplicate ballot?" asked Justice Helen Meyer.
Franken lawyer William Pentelovich told the court that the claim of double-counting was a theory lacking evidence, and that the issue is better suited for a court hearing than for a review by local election officials.
While Magnuson maintained that there was double-counting in 25 precincts, Pentelovich said the Coleman campaign "cherry-picked" the precincts where it claims this occurred. He said that if the Supreme Court ordered a review by local election officials, it would have to apply the order to all 4,130 precincts in the state. He said the effort would "create chaos."
The Supreme Court order denied the Coleman campaign's request for a temporary restraining order to prevent the state Canvassing Board from certifying the results of its recount until the question of double-counting was resolved.
The order said it was unclear what caused the discrepancies in the number of ballots counted on election night and during the recount.
"We do not and cannot decide that question based on the record presented in this abbreviated hearing," the court said.
Two of the court's seven members -- Chief Justice Eric Magnuson and Justice G. Barry Anderson -- are on the Canvassing Board, and they did not participate in the case.
A second ruling
In its other ruling Wednesday, the court gave local election officials and the Coleman and Franken campaigns more time to identify improperly rejected absentee ballots in the Senate race and send them to the state for counting.
The court said local officials could take until Jan. 2 to deliver such absentee ballots, unopened and uncounted, to the Secretary of State, who will have until Jan. 4 to open and count them. Coleman and Franken can then challenge the Secretary of State's decision on allocating those ballots, beginning Jan. 5.
The court previously ordered local election officials to open and count the absentee ballots and send them to the state by Dec. 31. But that process involved ballots being identified and counted by precinct. Because the identities of absentee voters are known and there may be only one or two mistakenly rejected ballots in some precincts, officials feared that adjusting vote totals would effectively reveal how individuals voted.
It's estimated that as many as 1,600 absentee ballots may have been improperly rejected by election officials.
The election was held Nov. 4, and the recount began Nov. 19, after the certification of results showed Coleman with a 215-vote advantage, well within the margin that triggers an automatic hand recount.
Pat Doyle • 651-222-1210