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In a ruling that keeps alive Republican Norm Coleman's chances of overturning Minnesota's U.S. Senate recount, a three-judge panel on Tuesday allowed him to bring evidence to trial that as many as 4,800 absentee ballots were wrongly rejected and should now be counted.
The decision expands the evidence that can be considered in the recount trial, giving Coleman the opportunity to put more ballots into play in his effort to erase a 225-vote lead for DFLer Al Franken. The Franken campaign had tried to limit Coleman to bringing evidence on only 650 absentee ballots that he cited specifically when he filed his lawsuit challenging the recount results.
In the ruling, the judges said they will focus on rejected absentee ballots cast by voters who complied with the requirements of Minnesota election law or failed to comply because of mistakes by local elections officials.
"We're very, very pleased with the ruling," said Coleman legal spokesman Ben Ginsberg, who predicted that "the vast majority" of the 4,797 ballots would be accepted and counted.
Franken chief recount lawyer Marc Elias said the ruling was "neither a loss nor a win" for his candidate. While it allows Coleman to bring evidence on more ballots than Franken preferred, it was far fewer than the 11,000 rejected ballots that Coleman's camp said in recent weeks that it wanted reconsidered.
Hamline University political scientist David Schultz said the ruling was crucial to Coleman. If he had been restricted to consideration of only the 650 ballots mentioned in his lawsuit, Schultz said, "It would have been all but over today. This at least keeps him in the ballgame."
But Schultz cautioned that the court is simply allowing evidence to be introduced that the ballots were wrongly rejected. It doesn't mean they were improperly rejected, nor that counting any of them would help Coleman, he said.
In any case, Schultz said, allowing some consideration of the ballots will probably add weeks to a trial already was expected to last into next month. Ginsberg said his side is prepared to argue every single one of the 4,800 ballots. "It's what the process demands at this point," he said.
Franken's team has raised the possibility of asking the court to consider absentee ballots that they believe were wrongly rejected, and they have said that perhaps 771 could be reviewed.
Tuesday, the panel of district judges rejected Coleman's bid to automatically count thousands of rejected absentee ballots without his needing to take his case to trial.
Coleman had argued for automatically counting all rejected absentee ballots that were cast by someone who was living on Election Day and that were not fraudulent. Alternatively, he said roughly 4,500 rejected absentee ballots fell into categories requiring them to be opened and counted. They included ballots not marked rejected by local elections officials and ballots rejected despite evidence that the voter complied substantially with state election law.
In denying Coleman's request to automatically count such ballots, the panel said, "There is insufficient evidence before the court at this stage." The judges said the Coleman campaign "will have the opportunity to present competent evidence to the court and may introduce disputed rejected absentee ballots into evidence in their case."
Ginsberg said his side wasn't terribly bothered by the denial of the campaign's attempt to have the votes dealt with by group.
"The court would prefer to deal with them one by one and county by county, which is more than fine with us," he said. "Maybe we thought it was easier [the other way], but the court disagrees and the court is always right."
In recent weeks the Coleman team has worked to widen the scope of the court fight over the absentee ballots. Many county officials have stood behind earlier decisions rejecting their share of the 650 absentee ballots that Coleman cited when he filed his lawsuit Jan. 6.
But in allowing Coleman to bring evidence of more widespread mistakes involving absentee ballots, the panel limited the scope of the trial to a provision of state law that says a ballot must meet four tests to be accepted. They are: The voter's name and address on the return envelope must be the same as on the ballot application; the voter's signature on the envelope must be genuine; the voter must be registered and must not have voted in person at the polls.
The panel also said an absentee ballot could be counted if Coleman could prove its rejection was not the voter's fault.
In court Tuesday, Washington County elections chief Kevin Corbid said he did not consider whether an absentee ballot mistake was committed by the voter or an election administrator when rejecting a ballot. His position differed from that of Ramsey County elections manager Joe Mansky, who testified that voters shouldn't be penalized for mistakes by elections officials.
Coleman lawyers have sought to show that elections officials sometimes put a pre-printed address form over instructions for signing an absentee ballot, contributing to the failure of some voters to sign the form. But one person who testified Tuesday signed the form despite placement of the sticker, and Elias said afterward that he thought it would be difficult to argue that voters aren't at least partially at fault for not signing a blank available for signature.
Pat Doyle • 612-222-1210 Kevin Duchschere • 612-673-4455