In Senate recount, suddenly geography is crucial

Franken counters Coleman effort to add ballots from GOP areas by asking the court to add more rejected absentee ballots from DFL areas.

Norm Coleman and Al Franken both say they want every valid vote to count.

But some ballots might be more important to them than others.

Coleman is pushing to review rejected absentee ballots from mostly GOP-friendly suburbs and outstate counties. Democrat Franken is paying particular attention to similar ballots from the Democratic-leaning cities of Minneapolis, St. Paul and Duluth.

The battle over the rejected absentee ballots heated up this week in the Senate election trial taking place before a three-judge panel in St. Paul. Coleman needs to persuade the panel to accept some of the ballots that he says were wrongly rejected to have a realistic chance to overcome Franken's 225-vote lead. Franken, meanwhile, might try to persuade the panel to accept ballots from another batch that he says were wrongly rejected.

In legal pleadings, Coleman has cited roughly 5,000 ballots rejected by local elections officials. Many are from Republican-leaning suburbs in Hennepin and Ramsey counties, counties that nonetheless went to Franken on the strength of large Democratic constituencies in Minneapolis and St. Paul.

Excluding those two counties, a clearer picture emerges. More than 80 percent of the remaining 2,900 rejected absentee ballots challenged by Coleman come from counties he won in November. Of those, nearly 1,100 are from counties he won by more than 10 percent. The biggest single number is from Carver County, which Coleman carried by 25.8 percentage points -- his largest margin in the state.

Since the state Canvassing Board certified Franken's lead Jan. 5, much of Coleman's legal strategy relies on winning a major review of rejected absentee ballots, and the three-judge panel this week cleared the way for him to bring in evidence that nearly 4,800 were wrongly rejected.

In reaction, Franken sought court permission to "refine" a list of 673 rejected absentee ballots that he has asked to reconsider. They are among nearly 800 ballots that Franken, in legal pleadings, said may have been wrongly rejected. About 24 percent of those ballots were cast by voters in Minneapolis, St. Paul and Duluth -- cities where only 14 percent of the overall Senate vote was cast.

About 10 percent of the absentee ballots that Coleman wants considered come from those cities.

Seeking a certificate

In another development Thursday, the Minnesota Supreme Court heard arguments in Franken's bid to get a provisional election certificate.

The justices aggressively questioned Franken lawyer Marc Elias as he argued that Franken ought to be issued a certificate and seated in the Senate while the recount trial continues.

Elias said Gov. Tim Pawlenty and Secretary of State Mark Ritchie are usurping federal authority by refusing to certify Franken as the winner of the long-running Senate battle, pending the end of the legal contest.

If the state waits until after the trial is over, Elias said, Minnesota will have failed what he called its constitutional mandate to provide two senators.

But lawyers for Coleman and the state said that Minnesota law is clear that no election certificate may be issued until the legal contest and any subsequent appeals are over.

After the hourlong hearing Thursday, Justice Alan Page said a ruling would be forthcoming, but he did not indicate when.

Questions and responses

Justice Paul Anderson asked whether, if Franken was provisionally seated in the Senate, Elias would be back to argue that the recount trial should be dropped.

We're not arguing that today, Elias replied. "Counsel, I'm not concerned what you're arguing today," Anderson said. "I am concerned what we'll be arguing if a certificate is issued and a senator is seated."

Elias: "I think the argument will remain the same." Anderson: "You think, or it will?" It will proceed under state law, Elias said.

Justice Lorie Gildea said there seemed to be two issues: who won, which was up to the state, and who sits in the Senate, which is up to Congress. "Why is that not exactly the right way to analyze this issue?" she asked Elias.

Because Minnesota isn't free to ignore the constitutionally mandated timetable for seating members of Congress in early January, Elias replied.

"If there was ever a usurpation of their power to seat, it is when a state simply opts itself out of abiding by the rules that the Senate has set," he said.

"The Minnesota Supreme Court has already decided this issue," said Gildea, citing a Minnesota case connected with the state's 1962 gubernatorial recount that ruled state court was the place to decide such issues.

James Langdon, Coleman's attorney, said that the law is plain and simple: Minnesota doesn't allow for a provisional election certificate in its election code.

Moreover, there is no federal mandate that states must supply senators by the time the Senate convenes, he said.

"Minnesota has made a determination that when it comes to the question of who has won, it's important to take the time to get it right, and that's exactly what this contest court is doing," he said.

Solicitor General Alan Gilbert, representing Pawlenty and Ritchie, agreed.

The statute, he said, "could not be more clear. That does not provide for a provisional certificate. That provides for no certificate" until the legal contest is over.

Four of the seven justices heard the case. Justice Helen Meyer was undergoing ankle surgery, but Page said she would participate in deliberations. Chief Justice Eric Magnuson and Justice G. Barry Anderson, who sat on the state Canvassing Board that certified the recount results last month, did not participate.

pdoyle@startribune.com • 651-222-1210 kduchschere@startribune.com • 651-292-0164

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