Request was made as Franken's lawyers prepare to make their case.
For more than a month, Norm Coleman stressed flaws in Minnesota's election system.
And on Monday, Coleman lawyer Jim Langdon wrote the three-judge panel to suggest the problems are so serious they may not be able to declare a winner.
"Some courts have held that when the number of illegal votes exceeds the margin between the candidates -- and it cannot be determined for which candidate those illegal votes were cast -- the most appropriate remedy is to set aside the election," Langdon wrote in a letter to the court.
Coleman's team rested most of his case Monday in the U.S. Senate election trial after more testimony underscoring problems with the election system. Under questioning from the Republican's lawyers, Minnesota's elections director acknowledged inaccurate data in the registration system that could exclude otherwise qualified people from voting.
Now Al Franken's team will try to convince judges that things aren't so bad after all.
Franken lawyer Marc Elias said the team will begin a case today that will include evidence "about the good job that the state of Minnesota did ... that the hardworking auditors and election night officials did. How the system worked, by and large."
But Franken lawyers will walk a tightrope with that strategy, because they also plan to call on voters to testify that their absentee ballots were wrongly rejected. While Coleman seeks to count 2,000 rejected ballots, the DFLer has a list of 804 rejected ballots he wants reconsidered. Elias said more than 100 voters could be called to testify, including more than a dozen today.
Coleman rested the bulk of his case as the trial entered its sixth week. Franken's side of the trial is likely to last two to three weeks, Elias said. Franken holds a 225-vote lead that he gained after the state Canvassing Board, on Jan. 5, certified the results of a recount.
One of the more contentious episodes in the trial so far ended Monday when the judges slapped Coleman with a $7,500 fine for failing to disclose a document from a Republican election judge who claimed votes were double-counted in Minneapolis. But they allowed her testimony to become evidence.
"In the event this sanction fails to deter future conduct on the part of [Coleman's] counsel, the court will not hesitate to impose harsher sanctions, up to and including dismissal [of the case]," the judges wrote.
The dustup involved Republican election judge Pamela Howell, who had appeared briefly twice last week before being dismissed because of the undisclosed documents she had provided the Coleman team.
Howell spoke about hearing a judge at her south Minneapolis precinct announce that some duplicate absentee ballots had been mistakenly fed into a vote tabulator without being labeled, raising the possibility that some votes may have been counted twice.
During an aggressive cross-examination by Franken attorney David Lillehaug, Howell said she was "haunted" by her belief that votes may have been double-counted. But while she shared her concerns with Coleman lawyers, she didn't speak to a Franken lawyer who tried to contact her.
"I didn't feel it was necessary," Howell said.
Lillehaug also brought in an e-mail message to Howell from a Coleman lawyer in January telling her they didn't want to file her affidavit detailing her concerns because they wanted to avoid disclosing her statement. Howell told Lillehaug she didn't make a public statement earlier because, "I did not want the press at my door ... a target on my back." She said she felt vulnerable as a Republican living in largely DFL south Minneapolis.
The Coleman lawyers also asked the judges Monday to subtract extra votes that they claim were tallied in Minneapolis precincts during the recount. They claim votes were counted twice after damaged ballots were copied to fit into tabulating machines on Election Day and the originals were added to the total in the recount.
Both sides confident
Coleman lawyer Joe Friedberg spent much of Monday going over the state voter registration database with state Elections Director Gary Poser, who acknowledged it contained errors. On nine occasions, absentee ballots may have been rejected because the voter was falsely recorded as having registered and voted on Election Day, Poser said.
The Coleman campaign has seized on such errors to challenge the integrity of the voter registration system, arguing that it could lead to improperly rejecting large number of absentee voters.
Coleman lawyer Ben Ginsberg said he was "extremely troubled" with the inaccuracies, but said the legal team had not decided what if any action to take during the trial.
The suggestion by Langdon that the election might be set aside was explored two weeks ago by an expert on election law.
"Even if the court lacks the power to order a new election, it could simply release a final judgment saying that it is unable to say which candidate received more legal votes, and leave it to other parts of the state government to figure out what to do in this situation," wrote Prof. Edward Foley of Ohio State University.
In other court action
Also Monday, the panel said three absentee ballots that it counted a couple of weeks ago should be rejected because the voters failed to sign documents or didn't update registration after moving. They were among 24 voters believed to be Franken supporters whose absentee ballots the court had approved.
The panel also ruled that Duluth city clerk Jeffrey Cox was not entitled to more than the $105 Franken had offered to cover expenses to come to St. Paul and testify. Cox wanted $1,151.
As so often has happened during the course of the trial, both sides painted a bright picture Monday of their prospects.
"We think we have made a very convincing case," Ginsberg said. "We have put enough votes in play to make Norm Coleman the U.S. senator."
Elias said, "We feel pretty good on the eve of beginning our own case," and predicted that Coleman would end up challenging substantially fewer than 2,000 ballots.