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In the clearest sign yet that he has dramatically shifted strategies since falling behind in the U.S. Senate recount, Republican Norm Coleman's campaign said Monday that it will push to have all 12,000 absentee ballots rejected in the election reconsidered and to ensure that those wrongly set aside are counted.
The sweeping new proposal, Coleman attorneys said, could bring as many as 7,000 more ballots into the race in which DFLer Al Franken has held a 225-vote lead since the recount ended Jan. 5. And it illustrates the first pivotal task facing the three-judge panel that will hear, beginning this week, Coleman's court challenge to Franken's lead -- figuring out exactly how far-reaching the legal challenge should be.
The latest move also revealed the about-face both campaigns have made over the past month: When Coleman held an unofficial lead in the recount last month, his lawyers argued before the Minnesota Supreme Court that rejected absentee ballots should not be part of the recount. Now, with Franken holding a lead gained in part by successfully arguing to include some rejected absentee ballots, the Franken campaign reacted coolly to reconsidering all 12,000 rejected absentee ballots.
"We're not going to respond to any proposal they make until they figure out what, exactly, their proposal is," said Franken spokesman Andy Barr, who said Coleman's legal team had only the day before privately floated a different proposal.
As early as Wednesday, the judges must start making decisions about the scope and very existence of the court fight. Franken wants the judges to dismiss Coleman's challenge outright. They will hear arguments on that motion Wednesday. Failing that, Franken's lawyers say, the court should limit its work to merely verifying the math and other decisions of the state Canvassing Board.
Coleman, by contrast, wants permission to conduct an exhaustive inspection of any ballots cast, hoping to find new irregularities or substantiate old claims that the Canvassing Board refused to consider.
Their starkly different proposals underscore an aggressive approach to the contest by both candidates that also foreshadows a potential federal court challenge by the loser.
Coleman's lawyers said they proposed reexamining all 12,000 rejected absentee ballots during a closed legal hearing with the three-judge panel Friday. They said that while Franken's lawyers seemed opposed to the idea, the judges were somewhat receptive. The campaign wants all rejected ballot envelopes transported to St. Paul by Friday.
The 900-plus rejected absentee ballots included in the state Canvassing Board recount, they argued, were added through a flawed process in which individual counties applied different standards before accepting them.
"There's a great disparity" in how individual counties initially examined rejected absentee ballots, said Tony Trimble, a Coleman recount attorney. "Some counties rejected very, very few. Some counties rejected a huge percentage -- [a] double-digit percentage."
Coleman recount attorney Fritz Knaak said the proposal translates into counting all rejected absentee ballots as long as the voter was "alive on Election Day," had properly registered to vote and did not otherwise vote in the disputed U.S. Senate election.
There was also speculation Monday that Coleman's latest legal move was being made with an eye toward the recount's next stage: a possible federal court challenge arguing a violation of the U.S. Constitution's equal protection clause should Coleman lose before the three-judge panel.
"He still has himself in a wonderful position to go to federal court," said David Schultz, a Hamline University law professor. "A very smart strategy."
Coleman has proposed a series of trial stages running through February to hear his claims about absentee ballots and that up to 150 ballots from mostly DFL areas were double-counted while missing ballots artificially inflated Franken's margin.
In seeking dismissal of Coleman's court challenge, Franken argues that the state Canvassing Board settled the dispute, and that state law and the U.S. Constitution limit the power of courts to review it.
"Basically, the Coleman people are saying, 'We want to recount everything,'" said Fred Morrison, a law professor at the University of Minnesota. "The Franken people are saying, 'We want you to check the addition, and nothing more.'"
Some experts on Minnesota's election law say the three-judge panel is unlikely to agree to Franken's narrow proposal because state law appears to allow Coleman to bring some of his specific claims of ballot problems to court.
Moreover, the Minnesota Supreme Court, in rejecting Coleman's bid to force the Canvassing Board to consider double-counting and the rejected absentee ballots, said he could always bring those claims to court.
Morrison thinks the panel, consisting of District Judges Elizabeth Hayden, Kurt Marben and Denise Reilly, will also likely hear Coleman's broader claims. But Morrison added: "My guess is they will say, 'Be specific; don't just ask us to do a general recount,' which is what [Coleman's proposal] sort of looks like."
"What Coleman is trying to do is go through the whole universe of ballots to find more votes, there's no doubt about that," said Duke law Prof. Guy-Uriel Charles, an expert on election law. "I think they are going to press the Coleman camp to really figure out what are the ballots that are in dispute, and to focus on those. If you do have this sort of wide-ranging inquiry, we won't know what happens until April."
Attempt to intimidate
The aggressiveness of both sides' positions is a challenge to the court, experts believe.
"Both sides are trying to intimidate the court," said Charles. "I think the court needs to quickly establish who's in control here, and say, 'This is what we're going to focus on, this is what the timeline is going to be. And if you don't like it, then you can appeal.'"
One indication that the three judges took a dim view of Coleman's proposed court schedule was the panel's ruling Friday that trial would begin Jan. 26, not Feb. 9, as the Republican suggested.
Asked if the ruling was a bad sign for Coleman, his spokesman Mark Drake said, "We are pleased that dates and details are now falling into place so we can begin this part of the process. ... We've got a strong case that we will be arguing and we are ready to move ahead."