DFLer Al Franken asked the state Supreme Court on Tuesday to order that he receive an election certificate in Minnesota's U.S. Senate race, a day after he sought to restrict Republican Norm Coleman's court contest challenging the recount results.
The two-pronged strategy seeks to pave the way for the Senate to seat Franken provisionally while limiting Coleman to a narrow court challenge, rather than the more sweeping review he seeks of absentee ballots, claims of double-counting and other irregularities.
On a third front, Franken is supporting a lawsuit filed Tuesday by 64 Minnesota voters who claim their absentee ballots were improperly rejected. They include voters from across the state and most, if not all, voted for Franken, their attorney said.
On Monday, Franken argued that a Coleman court challenge should be limited to the awarding of already certified ballots and a mathematical recount for accuracy. But Franken and the Supreme Court earlier appeared to envision that a court could conduct a broader review.
When Coleman wanted local and state elections officials to review his claims that some voters were counted twice and that absentee ballots were wrongly rejected, Franken argued those issues were better left for a court contest.
"This is precisely the sort of allegation that is left for consideration in an election contest, where evidence may be gathered and presented, witnesses may be heard (and cross examined) and fact-finding may occur," the Franken campaign said in a court memo last month that argued against the state Canvassing Board considering claims of double-voting.
And the Supreme Court, in response to Coleman's request that the board should consider 654 rejected absentee ballots, said, "The merits of this dispute (and any other disputes with respect to absentee ballots) are the proper subjects of an election [court] contest."
But after Coleman filed a lawsuit last week to raise those issues and others in court, Franken on Monday described it as "imprecise and scattershot" and asked judges to dismiss it.
A case for full representation
In Franken's petition to the Supreme Court on Tuesday, he asks justices to order Gov. Tim Pawlenty and Secretary of State Mark Ritchie to issue him an election certificate. Pawlenty and Ritchie on Monday refused to do so, saying state law did not permit it. Franken lawyer Marc Elias cited another part of state law Tuesday in arguing that Franken should be certified and seated pending the outcome of Coleman's contest in court.
"The impetus for this is the need for Minnesota to have full representation in Washington, D.C.," Elias said.
Coleman attorney Tony Trimble, however, said the Franken strategy is based on the belief that "it's very tough for the Senate to boot someone out of that seat" once it is filled provisionally and said the DFLer is citing a provision of state law that applies to election to the Legislature.
Although Senate Democrats have indicated that they wouldn't seat Franken provisionally because of the threat of a Republican filibuster, the Franken campaign is banking on that changing if a certificate were issued by the GOP governor and DFL secretary of state. "I believe if he had a certificate, the chances of a Republican filibuster would all but disappear," Elias said.
The Franken campaign's motion points to a provision of state law that says a lawsuit over a disputed legislative election does not postpone certification of the leader while the court battle goes on. The campaign says the same provision should apply to congressional races because it's implied in the law.
The Coleman campaign and legal observers say state law prevents a governor and secretary of state from certifying a candidate if an opponent files a lawsuit within seven days of the state Canvassing Board's certifying the results of a recount.
The lawsuit filed Tuesday by the 64 voters, also in the state Supreme Court, further complicated the Senate dispute.
Ursela Cowan, 70, a Roseville resident who was among the plaintiffs, said she voted by absentee ballot while spending a month convalescing in a nursing home. "I was called and asked if I had voted for Franken," Cowan said in describing how she was contacted by the Franken campaign during the recount. "I told them, how would you know who I had voted for?" She said she was unsure why her ballot was rejected.
Cowan said her daughter helped her fill out the ballot and told her "I'll circle ... everything you tell me to circle."
"I think that this is terrible, and I really feel that Coleman should give up," she added. "I would really like to ... almost throw something at Coleman."
The voters' lawsuit alleges cases where county officials acknowledge the votes were improperly rejected and also cases where voters sent affidavits to counties saying their vote was legally cast. Ritchie and various counties are named as defendants. The suit asks that the ballots be opened and counted and that the Senate or the three-judge panel presiding over Coleman's contest case decide what "might be deemed appropriate."
Charles Nauen, the plaintiffs' attorney, said the suit was attempting to count only the 64 ballots and was not arguing that all similarly rejected ballots be counted. He said he would probably not choose to represent others who had their absentee ballots similarly rejected but voted for Coleman.
"I can only speak on behalf of my clients," said Nauen, who said some voters came forward on their own and some were contacted by Franken's campaign.
Harold Conlow said he and his wife, Judith, voted absentee because they spend winters in Florida. Conlow said his ballot was counted but his wife's, which is part of the lawsuit, was not because it was "delivered to the wrong place."
"We filled them out at the same time, sent them to the same place," the Sturgeon Lake man said.
Robert Girtz, a Little Falls voter who is part of the lawsuit, said he too was mystified why his absentee ballot was rejected. Girtz said he was contacted by the county auditor, who told him of the rejection. "They mentioned that it was mistakenly rejected -- whatever that means. No idea," he said. "It's interesting. [It's my] 15 minutes of fame."