DFLer Al Franken asked Monday to have rejected absentee ballots be considered in the U.S. Senate election results that are to be certified today by a state board, a move later blunted by an attorney general's opinion that the issue should be left to the courts.
The eleventh-hour maneuvering occurred as the five-member state Canvassing Board prepared to meet at 1 p.m. today in St. Paul to review results showing Republican Sen. Norm Coleman with a lead of 215 votes out of more than 2.9 million cast.
That margin includes the canvassed results submitted by Minnesota's 87 counties, plus an additional nine votes in Coleman's favor that emerged from a post-election audit conducted in a sampling of about 200 precincts to check the accuracy of voting machines.
The difference is well within the one-half percentage point required to trigger an automatic hand recount, which Secretary of State Mark Ritchie said he was "absolutely" certain will begin Wednesday morning despite the last-minute challenge.
The Franken campaign filed a brief Monday asking the Canvassing Board to consider including improperly rejected absentee ballots in today's official tally. Granting that request would make it practically impossible to proceed to the recount on Wednesday.
However, the state attorney general's office later issued a three-page opinion requested by Ritchie that said the board's job today is purely administrative, not to determine the eligibility of a voter or whether absentee ballots were properly accepted.
Wrote Assistant Attorney General Kenneth Raschke Jr.: "Courts that have reviewed this issue have opined that rejected absentee or provisional ballots are not cast in an election." Improperly rejected absentee ballots can be challenged in court, he wrote.
Ritchie, who will chair the Canvassing Board, which also includes two state Supreme Court justices and two Ramsey County district judges, said the panel will hear presentations of vote results from the counties and the equipment audit. Those numbers will be combined to provide the tally officially accepted by the board, he said.
The board also will approve a list of recount procedures -- already reviewed by the rival campaigns and state legal officials -- that assigns duties for officials at each location, details how the ballots will be handled and documented, and allows the public to attend the counting. The panel also will serve as the canvassing board for the recount.
Ritchie released a final list of 107 sites across the state where recounts will take place and when they will begin. To help the public follow the recount's progress, his office is creating a special website that will keep an unofficial running tally of the number of votes counted for Coleman and Franken, the number of ballots challenged by each campaign and the number cast for other candidates.
The website, which will update figures at 8 p.m. every day, will include a breakdown of the count by counties and precincts as the work is finished, Ritchie said.
Franken camp's position
Franken spokesman Andy Barr said Monday that the campaign knew of "hundreds" of absentee ballots that had been rejected by election judges, and that at least a dozen counties had so far complied with the campaign's formal request to each Minnesota county for lists of rejected ballots. He said a hearing is scheduled Wednesday in the campaign's lawsuit seeking Ramsey County's list.
The 18-page legal brief that the campaign filed Monday with the state Canvassing Board included four examples of absentee voters said to be disenfranchised when their ballots were rejected. Jessup Schiks, of Kandiyohi County, had his absentee ballot rejected because officials ruled the signature didn't match the registration card; campaign officials said Schiks later signed an affidavit confirming the ballot was his.
In another case, Bruce Behrens, a Goodhue County resident, said his absentee ballot was rejected because officials believed his girlfriend, who vouched for him, wasn't a registered voter even though she is.
"The [canvassing] board must consider and take into account all ballots cast -- including validly cast absentee ballots that have been wrongfully rejected," a legal memorandum signed by Franken's lawyers stated.
Franken campaign attorney Marc Elias said that they weren't asking the Canvassing Board to postpone the recount. However, he added, "I don't think they have a vote count to certify [today]. ... We would ask them to not certify the vote count until this is completed."
Fritz Knaak, an attorney overseeing a legal team of roughly two dozen lawyers for Coleman's campaign, praised the attorney general's opinion and said it should "make fairly short work of the hearing" today.
Knaak said Coleman's campaign has positioned lawyers throughout the state for the start of the recount.
Franken will be going to Washington for meetings Wednesday with Democratic leaders in the U.S. Senate, to update them on the recount and to talk about upcoming legislation. State GOP Chairman Ron Carey on Monday said the trip suggested a "presumptuousness" about victory, even though Franken had already announced he would skip an orientation program for new senators. Carey said he objected to attempts by Senate Democrats to intervene in the race but said he had no evidence that might happen.
Also Monday, a group from across the political spectrum called for transparency in the recount process. The group included former U.S. Sen. Dave Durenberger, a Republican; former Hennepin County Board Chairman John Derus and George Soule, an attorney and former chairman of the state judicial election commission under former Gov. Jesse Ventura.
Even if the guidelines are followed, members of the group predicted the election results are likely to end up in litigation. "Will this wind up in the courts? My best estimate is that it is 100 percent likely," Soule said.