Senate recount down to 387 ballots - and almost certain appeal

  • Article by: PATRICIA LOPEZ , Star Tribune
  • Updated: April 7, 2009 - 8:53 AM

As the three-judge panel nears a decision, both sides are preparing for the next step.

The longest, costliest U.S. Senate race in Minnesota history has come down to a decisive pile of under 400 absentee ballots that will be opened and counted today in yet another attempt to determine a winner in the case of Norm Coleman vs. Al Franken, Supreme Court File No. A09-65.

A mere 225 votes separate the two contestants, with DFLer Franken clinging to a lead that has been as stubborn as it is narrow.

Now, the last few hundred ballots have been couriered from all corners of the state to Room 300 in the state's Judicial Building in St. Paul, and at 9:30 a.m. sharp, state Elections Director Gary Poser will once again begin the process of counting under the watchful eyes of the three judges who have been hearing the election trial and who could issue a final ruling within days.

But few expect the decision to end a race that has left Minnesota as the only state in the nation with a single senator serving it at one of the most critical junctures in recent history.

Sitting tieless on an oak bench in front of the courtroom Monday afternoon, Coleman attorney Ben Ginsberg ruminated on the path ahead.

"I would expect either side would appeal the decision to the Minnesota Supreme Court," said Ginsberg, who earned his chops on the nation's most celebrated recount, Bush vs. Gore in 2000. A decision by the three-judge panel in mid-February to more strictly define which ballots could be counted changed the outcome of the Senate race, Ginsberg said. "It helped the Franken campaign, hurt the Coleman campaign and disenfranchised thousands of Minnesotans."

In an e-mail to Franken supporters, lead Franken recount attorney Marc Elias said that "although Coleman is likely to appeal in the hopes of finding a venue less picky about the rule of law, our analysis shows that the meticulousness of the court's procedure and ruling would make such an appeal a difficult proposition."

But Gov. Tim Pawlenty was quick to caution against jumping to any conclusions about the former senator's fate.

In an interview with MSNBC on Monday, Pawlenty told a reporter that "you shouldn't assume that Norm Coleman is going to lose the appeal. He has legitimate issues raised." Pawlenty speculated that an appeal could take "a month or two to decide." Even then, he said, "the federal process is available."

Ballots driven in

The last of the 400 ballots ordered by the judicial panel arrived in the secretary of state's office on Monday afternoon, with five driven up and hand-delivered by the Freeborn County auditor. Judges spent the day poring over the unopened ballots, reviewing the outside envelopes for possible irregularities and making final determinations on how many of them will be opened today.

Deputy Secretary of State Jim Gelbmann said Monday that 13 of the 400 ballots on the judges' list had already been counted, on Election Day or during the recount, putting the number of ballots that might be added at 387.

Once opened, outside envelopes -- which contain voters' names -- will be separated from the security envelopes that contain the original ballots, said Secretary of State Mark Ritchie. Poser will then sort the ballots into three piles -- Franken, Coleman and other.

By noon, judges should have an actual count and add the numbers to the candidates' tallies. But a decision in the trial probably won't be issued until later this week because the judges will review other pending issues in the case before making a ruling, Ritchie said.

Ritchie said that while he is eager for the contest to end, he actually hopes the judges' ruling is appealed.

The court case that has engrossed Minnesota and become national polticos' favorite daytime drama needs the kind of closure and sweep that only a state Supreme Court decision can provide, Ritchie said.

The three-judge panel has been "incredibly careful and devoted to detail," he said. "But their charge has been to drill way, way down. The [Minnesota] Supreme Court can take more of an overview and set a precedent for how future recounts will be handled. It's been a long process and it's nearing an end, but we need a final summation of all this so we can put it behind us."

Coleman himself left little doubt on Monday that he considers the fight to retain his seat far from over.

While Coleman has not talked to local reporters lately, he told conservative talk show host Sean Hannity that "we got more votes on Election Night, when all votes are counted fairly." Now, he said, "those votes have to be counted using the same standard and we believe the Supreme Court of Minnesota will ultimately make that judgment but it will be made and we will prevail. I want to make that very clear."

The candidates will have 10 days to file an appeal once the judicial panel makes its ruling.

The Associated Press contributed to this report.

Patricia Lopez • 651-222-1288

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