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Pressing its case in the Senate election trial, Norm Coleman's campaign argued Thursday that some votes already tallied during the recount must be illegal, going by a ruling issued by the judges last week.
It's a mess that only the court can fix, Coleman spokesman Ben Ginsberg said.
"There are more illegal votes in the current counts than in Al Franken's erstwhile [225-vote] lead, ... the margin in the race right now," Ginsberg said after Thursday's proceedings.
The ruling in question was issued last Friday, when Judges Elizabeth Hayden, Kurt Marben and Denise Reilly tossed out most of 19 categories of rejected absentee ballots that were candidates for reconsideration. Adding absentee ballots that may have been wrongly rejected is a key part of Coleman's case as he tries to overtake Franken.
In the memo accompanying the order, the judges said they won't count any ballot that doesn't meet the "unambiguous terms" of state law, and they cited the statute saying that an eligible absentee vote must be witnessed "by anyone who is registered to vote in Minnesota."
Ginsberg said that testimony on Thursday made it clear that most local election officials didn't check to see whether all absentee-ballot witnesses were registered, thus letting ballots be counted that the court says shouldn't have been.
It was the latest salvo in Coleman's case that different standards were used across the state to judge similar absentee ballots.
On the other hand, Franken lawyer Marc Elias said another ruling makes it clear that the judges think what they termed "irregularities between the counties" in applying the pertinent state law are irrelevant. That ruling, issued Wednesday, denied Coleman's attempt to hear from a St. Cloud economics professor about varying rejection rates of ballots in different counties.
Meanwhile, in Thursday's proceedings, Coleman lawyer Joe Friedberg focused much of his attention on ballot witnesses who might not be registered voters and on missing registration cards.
"We do not do that ... because we have never been instructed to do that by the state or the county," said Eden Prairie City Clerk Kathleen Porta.
That contrasted with Carver County, which checks addresses and voter registration rolls to make sure witnesses are registered. In November, Carver accounted for about half of the absentee ballots rejected in the state for lack of a registered witness.
County elections supervisor Kendra Olson testified earlier this week that she believed state law required county officials to check on whether witnesses were registered.
Ginsberg said that if Carver's 36 percent rejection rate were applied to Minneapolis and Ramsey and St. Louis counties -- all DFL strongholds that went heavily for Franken -- it would amount to 1,941 illegal votes.
Spurred by rulings that have had the effect of streamlining things, the trial speeded up noticeably Thursday as lawyers took testimony from 10 county and suburban election officials. The trial resumes this morning.
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