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In a move to "streamline" a trial often bogged down in tedious testimony, the three judges overseeing Minnesota's U.S. Senate court battle on Tuesday asked Norm Coleman and Al Franken whether entire categories of rejected absentee ballots should be reconsidered or set aside once and for all.
Should a ballot be barred if it went to the wrong precinct? Should a ballot be excluded if cast by a non-registered voter? And what about an unsigned ballot where the instructions for signing were obstructed by a pre-printed address sticker?
Those are among 19 questions that District Judges Elizabeth Hayden, Kurt Marben and Denise Reilly want lawyers for Coleman and Franken to answer this week in a major development in a dispute over thousands of ballots that one side or the other wants counted.
Shortly after the ruling Tuesday evening, Franken lead recount lawyer Marc Elias said, "I think it's a very positive development because it will serve to winnow this field and allow us to hone in on smaller core groups that are generally at issue."
Coleman spokesman Mark Drake said: "We're very pleased with the order. We think it's a very good way to proceed."
Two weeks ago, the Coleman legal team asked the court to accept for counting ballots in categories based on the 933 absentee ballots that were accepted during the recount by the state Canvassing Board. Those ballots had been rejected earlier by counties. For instance, Coleman says the state ultimately counted 70 ballots that were rejected because they lacked an application, but that more than 100 more such ballots remain disqualified for the same reason.
But Elias said he believes the judges have created their own 19 categories based on hearing testimony over specific absentee ballots.
The order calls on lawyers for the two sides to present written arguments today and oral arguments Thursday on whether ballots in the categories outlined by the judges should be considered illegally cast.
Coleman has said as many as 4,800 absentee ballots were wrongly rejected and Franken has cited nearly 800 that he says may have been wrongly rejected.
New votes counted
Earlier Tuesday, the panel for the first time since it took up the case decided to count some rejected absentee ballots.
In the process, Franken apparently picked up at least 23 votes Tuesday. They involved affidavits collected from those voters saying that they had cast absentee ballots for the DFL candidate that weren't accepted.
Elias heralded the ruling, saying it was good news for the voters involved and also reveals how closely the judges intend to adhere to state law in determining which rejected absentee ballots may be opened and counted.
"You've seen now in a series of motions how careful the court is being to judge each ballot individually," he said.
But Coleman attorney Ben Ginsberg said the ruling also aided their efforts to have many more ballots counted and shows that the three-judge panel "will allow in many more ballots as long as there is adequate proof of the voter's intent. ... We feel very good about what happened today."
Of the 23 ballots the court accepted in its ruling Tuesday, eight are from Dakota County and six from Hennepin County, with the remainder scattered across the state.
In addition, the judges said that a 24th ballot was likely valid and could be counted if its sealed secrecy envelope includes a completed new voter registration form.
The panel didn't approve claims from 37 other voters, saying there wasn't enough evidence that they were legally cast. But it but didn't rule out counting their votes later, and Elias expressed confidence that many of those would also be counted.
Ginsberg said that the campaigns also got word late in the day that Stearns County officials may have found seven absentee ballots that weren't included in previous figures, which he said underscores "the inaccuracy" of the certified recount results.
The Franken legal team has resisted what it describes as a more expansive definition of voter compliance favored by Coleman, who is eyeing rejected absentee ballots as providing a possible way to overcome Franken's 225-vote lead.
Elias declined to add the newly approved absentee ballots to Franken's column, saying his campaign is waiting for the court contest to run its course.
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