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Al Franken's effort to block Norm Coleman's lawsuit over the U.S. Senate recount was rejected Thursday by a three-judge panel, setting the stage for a trial to begin Monday on the Republican's claims.
State election law doesn't undermine the Senate's constitutional power to later judge the qualifications of its members, the judges said in denying Franken's request to dismiss the election contest, as the lawsuit is called.
The panel also rejected Franken's attempt to limit any court review to verifying math and other technicalities of the recount and canvass, clearing the way for the judges to consider Coleman claims that some votes in Democratic areas were counted twice, that some absentee ballots from GOP areas were wrongly rejected and that there were other irregularities.
The panel noted that the Minnesota Supreme Court had ruled that while those claims shouldn't be decided during the recount, they "would be properly heard in an election contest" in court.
Coleman lawyer Ben Ginsberg called the panel's decision "a stinging defeat for Al Franken. It underscores that the Coleman contest will proceed, that there will be a trial."
Said Franken lawyer Marc Elias: "We look forward to the trial commencing ... and moving forward expeditiously so that Minnesotans can have two Senators representing them as quickly as possible."
The trial is scheduled to start Monday at the Minnesota Justice Center in St. Paul.
This month, the state Canvassing Board certified the recount results, which gave Franken a 225-vote lead.
Franken had argued that state law and the U.S. Constitution sharply restricted any lawsuit over the results of a U.S. Senate election. But the panel disagreed, saying a court's review of an election "is not limited to the purely ministerial task of ensuring that the tallies from the canvassing board are fee from mathematical error."
As an alternative to a dismissal, the Franken campaign had suggested recently that the judges could limit any trial to some of Coleman's more narrow claims: that 654 absentee ballots were wrongly rejected, that up to 150 votes were counted twice, and that a machine count shouldn't have been used for 133 ballots that couldn't be found during the recount.
But the panel's order didn't so restrict Coleman, who has in recent days called for an inspection of 11,000 rejected absentee ballot envelopes before the trial begins. However, in a separate order issued later Thursday, the judges did deny a request by Coleman to have counties ship all those envelopes to the panel.
The panel's refusal to dismiss the suit came on a day when it also was mulling a Coleman request to order inspectors to visit 86 precincts around the state to investigate his claims that some ballots were counted twice or never counted at all. Coleman lawyers say as many as 20 teams of inspectors could conduct the review, which would take place before the trial begins.
Attorneys for Franken opposed the proposal, saying it would be "almost physically impossible" to conduct the inspection in that time. But Coleman attorneys said an inspection could be done over the next three days.
Hundreds of votes could be in play in the 86 precincts, which include 22 precincts that Coleman cited earlier as ones where votes might have been counted twice. Most of those were in Democratic-leaning areas of Minneapolis.
But the expanded list also includes precincts where Coleman says valid ballots were not counted, as well as precincts that he said had fewer ballots than persons voting.
Coleman attorney Tony Trimble told the judges Thursday that the reexamination would involve a systematic effort by three inspectors -- one from each campaign and a nonpartisan -- going to the precincts and taking another look at ballots.
Trimble argued that on-site inspection now would winnow down the disputed ballots and spare the court the time of taking evidence and hearing witnesses on all of the ballots later at trial.
Coleman's request to inspect the 11,000 rejected absentee ballot envelopes and related materials before trial is not limited to the 86 precincts, but would involve examining documents "in all precincts, cities and counties in which absentee ballot envelopes were rejected by local election officials and not opened on election night."
Franken lawyer Elias accused Coleman of seeking to change the rules for counting ballots that were agreed to during the recount. "I don't know what rules they will be given, what standards," he said, referring to the inspectors.
Elias said the inspection process proposed by Coleman would effectively miscast inspectors in the role of judges or the U.S. Senate. He said the Minnesota Supreme Court, in rulings during the recount, envisioned such claims going to hearings that can examine evidence and take testimony.
"That is not a process that three inspectors are going to make," Elias said. "That is not a process that is going to take place between now and Monday in counties scattered throughout the state."
Moreover, he said the inspection program proposed by Coleman would "put the counties through unprecedented expense over the weekend to produce all these voter rolls."
Shortly after the panel heard arguments Thursday on the proposal for inspections, Coleman appeared at the Capitol and said he would not rule out further legal action, including an appeal to the U.S. Supreme Court.
"I'm not ruling in or out any action" he said. "I have confidence in the system." He said he believes the court contest will resolve disputes. "I'm committed to moving through this process."
Pat Doyle • 651-222-1210