Coleman attorneys said that some of the ballots accepted in the state's recount may resemble other ballots that were barred from being counted in a court ruling on Friday.
Norm Coleman's lawyers want judges in the U.S. Senate election trial to reverse their recent ruling and consider counting rejected absentee ballots similar to others that previously were tallied.
On Friday, the three-judge panel excluded 12 categories of rejected absentee ballots from reconsideration. But the Coleman legal team said Monday that those banished categories would have fit about 100 ballots that were accepted last month during the recount.
While the campaign could challenge the 100 accepted ballots, it would prefer that the panel allow similar ballots to be introduced in court and counted, said Coleman legal spokesman Ben Ginsberg.
Coleman's lawyers also said the judges applied a looser standard earlier last week when they accepted more than 20 rejected absentee ballots cast by voters who supported DFLer Al Franken, whose 225-vote lead after the recount is being challenged by Republican Coleman in the trial.
In a letter to the judges Monday, Coleman's lawyers argued that the standard for counting any remaining rejected absentee ballots "must be consistent with the standards this court has already applied to other ballots" and with standards used by counties for counting thousands of absentee ballots. Friday's ruling will "exacerbate inconsistencies and inequities," the letter said. Ginsberg said in a statement that it could create a "widespread equal protection problem."
Franken recount attorney Marc Elias said he doubts the court will reverse itself and believes the Coleman team's move is part of a broader strategy of arguing that the acceptance and rejection of similar ballots violated the equal protection clause of the U.S. Constitution.
Hamline law Prof. David Schultz said that while the reconsideration request is a long shot, it could pave the way for Coleman to appeal his case to the Minnesota Supreme Court during or after the trial.
"This is sort of the first step if they're thinking of doing an appeal," Schultz said.
Dueling and mixed messages
The request that the panel reconsider its ruling came as the Franken campaign again expressed confidence that the order would help its case, and as Coleman's side delivered a mixed message.
Coleman spokesman Ginsberg said the campaign was happy that 3,300 to 3,500 rejected absentee ballots would end up being reconsidered. Previously, the campaign had focused on 4,800 absentee ballots. He said the campaign is "sad" because some votes that we "feel should be counted, won't be counted."
Elias said the Coleman campaign's bid for the panel to reconsider the ruling demonstrates that the decision went against them. He called 3,500 ballots "the high water mark" for Coleman from now on during the trial. Elias said about 2,000 of the ballots involve mismatched signatures or questions about registration and predicted that the vast majority of those wouldn't survive a court test. He said it was possible that 500 to 1,000 would end up being counted.
When the state Canvassing Board certified results of the recount last month, it included 933 ballots that initially were rejected by Minnesota counties but later accepted during a review by local officials and both campaigns. The 933 ballots broke strongly for Franken, helping him secure his lead.
Coleman attorney Fritz Knaak said Monday morning that the judicial panel, in narrowing the scope of the trial, effectively rejected some ballots that resembled ones that the Canvassing Board accepted.
Earlier in the trial -- before the panel narrowed the types of absentee ballots that can be reviewed -- both sides agreed that they would not revisit the 933 absentee ballots.
Lawyers for both campaigns met Monday morning at the Minnesota Judicial Center in St. Paul in an effort to work out a trial procedure and schedule in keeping with Friday's court order narrowing the scope of the trial.
The trial recessed early Monday afternoon after hearing testimony from several voters whose ballots were rejected.