Democrat Al Franken suffered a setback Wednesday when the state Canvassing Board unanimously turned down his campaign's request to include rejected absentee ballots in the U.S. Senate recount, prompting a Franken attorney to threaten to go all the way to Washington if necessary to get them considered.
"Whether it is at the county level, before the Canvassing Board, before the courts or before the United States Senate, we don't know yet. But we remain confident these votes will be counted," said Marc Elias, the campaign's lead recount attorney, who added that he won't appeal the board's decision.
Senate Majority Leader Harry Reid, D-Nev., termed the Canvassing Board's decision "cause for great concern" and called on Minnesota officials to "ensure that no voter is disenfranchised."
Cullen Sheehan, campaign manager for Republican Sen. Norm Coleman, called Elias' and Reid's statements "a troubling new development." He asked Franken to accept the recount results if he loses, and to promise Minnesotans "that he will not allow this election to be overturned by the leadership of the Democratic Senate."
With 88 percent of the vote recounted by Wednesday night and the number of challenged ballots surpassing 5,600, Coleman's advantage over Franken was 282 votes, according to a Star Tribune compilation of results reported to the Secretary of State's office and gathered by the newspaper. That was 67 more votes than the margin Coleman held at the start of the recount. His campaign had challenged 147 more ballots than Franken's.
The board members -- Secretary of State Mark Ritchie, Minnesota Chief Justice Eric Magnuson, Associate Justice G. Barry Anderson, Ramsey County Chief District Judge Kathleen Gearin and District Judge Edward Cleary -- agreed at their hour-long meeting Wednesday that the panel doesn't have authority under state law to include rejected absentee ballots in a recount. The board said it was not ruling on the merits of the Franken argument.
Board members gave Franken a glimmer of hope when they said they will consult with the attorney general's office and both campaigns to decide whether local election officials should sort through rejected ballots. That would help determine whether ballots were wrongly excluded and also help prepare for a court challenge that all seemed to expect.
Ritchie estimated that 12,000 absentee ballots were rejected. A Star Tribune analysis of those rejected in 39 counties shows that 84 ballots appear to have been turned aside without officials giving one of the four reasons specified in state law. The analysis did not include ballots from Hennepin County.
Another important factor in the race is the 5,600 ballot challenges made to date. In those cases, the campaigns have challenged an election official's decision on the voter's intent, and the Canvassing Board will be the final arbiter. On Wednesday, board members urged both campaigns to reduce the challenge total by weeding out frivolous challenges from their respective stacks.
The board will meet Dec. 16 to rule on challenged ballots and certify the final results in the statewide recount, which began last week and will continue through Dec. 5. The board aims to be done by Dec. 19, but it will take as long as needed.
Behind the board's decision
At Wednesday's meeting, Justice Anderson moved to reject the Franken request on the grounds that the board didn't have the authority to include the rejected ballots in the recount. His colleagues quickly agreed, although Cleary and Gearin said they were reluctant to do so.
The two Ramsey County judges said they believed that absentee ballots that were wrongly rejected should be included in the tally, and urged that they be separated into a "fifth pile" that could be reviewed by local election officials for possible inclusion in their counts. (Ballots rejected for the four reasons specified in state law would go into four other piles.)
Anderson said the "fifth pile" plan would help identify issues for the litigation almost certain to come, but suggested that some input from the attorney general's office may help. Magnuson said that at some point "you have to stop counting," and asked Ritchie when that time will come.
"When we sign the paper" certifying the results, Ritchie replied.
In the end, the Canvassing Board agreed to encourage elections officials to begin sorting rejected absentee ballots, while awaiting further instruction and advice from the attorney general, the campaigns and other interested parties.
Fritz Knaak, the senior counsel for the Coleman campaign, said he believed many counties were already separating out valid absentee ballots that had been rejected. In any event, he said, the campaign's analysis indicates that there are so few of them out there -- perhaps a dozen, he said -- that they wouldn't make much difference in the recount anyway.
Knaak said he wasn't surprised by the board's decision on the Franken request, which he characterized as "a strategy ... preparing themselves for an election challenge."
Cutting the challenges
Knaak welcomed the board's directive on challenged ballots, saying that both sides know that there has been "a big mass of ballots" that never should have been disputed. He said he planned to talk to Elias about looking for ways to whittle down the ballots to make things easier for the Board next month.
Elias said that the Franken campaign plans eventually to withdraw an unspecified number of challenges, but declined to say how many or when. He dismissed a late-night call Tuesday by the Coleman camp for a truce in ballot challenges as a gimmick to "try to shape what the press does," noting that Coleman is still ahead of Franken in overall challenges.
Elias said the campaign was disappointed by the Canvassing Board's ruling but won't appeal it. He said he was encouraged, however, that it left open the possibility of sorting the ballots.
Ritchie is a DFLer, and Magnuson and Anderson were appointed by Republican Gov. Tim Pawlenty. Gearin was elected to the bench in 1986, and Cleary was appointed in 2002 by Independent Gov. Jesse Ventura.