Visions of Senate race lead dance in Franken's head

As the state Canvassing Board finished awarding most of the disputed ballots Friday in the U.S. Senate recount, another chapter in the drama opened when the state Supreme Court agreed to consider the alleged double counting of 130 votes.

Democrat Al Franken moved ahead of Republican incumbent Norm Coleman in the unofficial count, both sides said. It was about the only thing they agreed on.

Marc Elias, Franken's lead recount attorney, calculated the challenger's lead as being in the double digits or, at most, in the low 100s. "There's absolutely no doubt at this juncture that Al Franken has received more votes than Norm Coleman in the completion of the recount," he said, adding, "This is only the next step in the process."

Coleman recount attorney Tony Trimble said that Franken would lose his lead next week when all the challenged votes are allocated to each candidate. Before the Canvassing Board met, the two campaigns had withdrawn several thousand ballot challenges, and those votes have yet been allocated. That is expected to happen early next week.

Said Trimble: "We'll see our ship come in and we're quite pleased with that anticipation ... We've purchased our cruise tickets."

Another day in court

In the meantime, the Coleman campaign took its second trip to the Minnesota Supreme Court after the Canvassing Board said Friday that it would not keep out of the recount original or duplicate ballots for which matching copies can't be found.

Board members unanimously decided that such an issue was beyond their scope and should be handled by the courts. They also invited the campaigns to find a joint solution, which seemed unlikely.

"While I think there's a serious issue here," said Justice G. Barry Anderson, a member of the state Supreme Court who also sits on the Canvassing Board, "... this is not the forum."

Coleman lawyers immediately petitioned the Supreme Court, arguing that including both unmarked duplicate ballots and marked originals would lead to the "double-counting of votes." Trimble said at least 130 ballots were at issue and estimated that Franken would gain 50 votes should their inclusion go unchallenged.

Later in the day, the Coleman team filed another motion for a temporary restraining order to prevent the Canvassing Board from certifying election results that might include alleged double votes.

The court agreed to hear the Coleman arguments Tuesday afternoon. The Franken campaign, which wasn't named in the Coleman petition, almost immediately filed a motion to present its side in court.

On Thursday, the Supreme Court had ruled that improperly rejected absentee ballots must be counted by the Canvassing Board and directed the board and local election officials to work with the campaigns to decide which ones to tally.

The Coleman lawyers had argued against including rejected absentee ballots in the recount, but on Friday they applauded the court's decision. Coleman attorney Fritz Knaak called it "wonderful" and said it would lead to a statewide standard for dealing with such ballots.

Elias said that Coleman's latest court petition was a sign of desperation because Franken had taken the unofficial lead in the recount.

"They are panicking, and taking the desperate steps a losing campaign takes," Elias said. He said that a duplicate ballot doesn't indicate that someone cast two votes, only that there was a spoiled original ballot.

He also said that both campaigns had earlier agreed that only original ballots would be counted in the recount, with duplicates substituted only when the original couldn't be located.

"It's a bit disingenuous for the Franken campaign to pretend to act surprised about this. Their people challenged duplicates and originals in precincts for this very reason," said Matthew Haapoja, another Coleman recount attorney. "What we disputed originally ... was they wanted to count duplicates for which no originals could be found. That's the opposite of this situation.

"Our position's always been consistent. You count the duplicates in every situation. You don't resort to the originals," he said.

Board winding down

Secretary of State Mark Ritchie, who chairs the Canvassing Board, expressed satisfaction Friday with the work it did this week. He planned a two-hour meeting for Monday or Tuesday to tie up loose ends and dispatch any other ballots lost in the shuffle.

"We're down to some important but relatively small -- in a numerical sense -- side issues: wrongly rejected absentee ballots, some questions of originals and duplicates, and we also have [to reconcile] everybody's list" of challenged ballots, he said.

The work in the next few days, he said, will focus on preparing a spreadsheet of the 6,600 originally challenged ballots and tallying how those votes were awarded. The campaigns will be given the chance to examine those lists before they're finalized, he said.

In the meantime, county staffs will have to find time this holiday season to open and count wrongly rejected absentee ballots and forward that information to Canvassing Board by Dec. 31, as ordered by the court.

Ritchie refused to say that a winner won't be certified by early January, when the Senate goes into its new session.

He applauded the work of the Board and his staff in the canvass phase of the recount.

"Our task is to do this so well that the state can celebrate, that the nation can heal from the mess of Florida where the recount was stopped [in the 2000 presidential election], and also that the disappointment that will come for people and for a candidate who will not win this, will be seen in the context of a process that was incredibly fair," he said. "Right now, we're on track to do Minnesota proud."

kduchschere@startribune.com • 651-292-0164 mkaszuba@startribune.com • 612-673-4388