As Al Franken's lead widened, Norm Coleman's lawyers said too few disputed ballots were counted.
It seemed like the beginning of the end to Al Franken's lawyers, while attorneys for Norm Coleman saw it as the end of the beginning. In Washington, Senate leaders crossed swords for a continuing duel.
Not long after a decisive majority of once-rejected absentee ballots were counted and broke for Franken on Tuesday, attorneys on both sides were already jawing over the merits of an appeal in the 10-week-old U.S. Senate recount trial.
Coleman spokesman Ben Ginsberg said the three presiding judges erred in permitting only 351 rejected absentee ballots to be counted. "We will be appealing this to the Minnesota Supreme Court," he said.
Franken attorney Marc Elias brushed aside the threat. "I don't think there is much of a case on appeal at all," he said.
The ballots counted Tuesday were ones that the three judges had concluded were wrongly rejected. State Elections Director Gary Poser went through them one by one in court, calling 198 votes for DFLer Franken, 111 for Republican Coleman and 42 for the Independence Party's Dean Barkley or others.
The tally increased Franken's narrow lead from 225 votes to 312, out of 2.9 million votes cast in the November election.
The judges' verdict in the trial could come this week or next and is expected to include all remaining decisions that the court has yet to make. That includes a ruling on Coleman's claims that some ballots in DFL-leaning precincts were counted twice and that officials erred in using an Election Night machine count for a Minneapolis precinct after 132 ballots went missing during the hand recount.
Focus on absentee ballots
But Coleman's case at trial rested mostly with counting absentee ballots that he said had been wrongly rejected. Barring an unexpected court ruling, he now lacks the ballots needed for a trial victory.
A verdict would trigger a 10-day period in which Coleman could appeal to the state Supreme Court. Even assuming that such an appeal would be sped up for quick resolution, a decision from the state high court might not come before Memorial Day, said Hamline University political scientist David Schultz.
Until then, a new senator couldn't be certified under state law. The Minnesota Supreme Court has ruled that state appeals must be exhausted before an election certificate can be issued by Gov. Tim Pawlenty and Secretary of State Mark Ritchie.
In an appeal, Coleman will argue that counties applied different standards in deciding which absentee ballots to reject, violating constitutional guarantees of equal protection and due process, and that the judges overseeing the trial excluded thousands of absentee ballots that met the same criteria as those accepted on Election Day and during the recount.
Ginsberg said that the 351 votes counted Tuesday were likely from precincts that leaned Democratic, and that Coleman would have picked up far more votes during the trial if the panel had approved the 4,800 absentee ballots that the former senator's team sought to count.
The final group of ballots was winnowed by the judges from lists submitted by the candidates. During the trial, each candidate put forth lists of ballots that came from areas that generally favored them in the November election.
Echoes in D.C.
Senate leaders in Washington rallied behind Coleman and Franken.
Texas Sen. John Cornyn, who chairs the National Republican Senatorial Committee, said in a statement that the court failed to address "the main issue," that the judges had disenfranchised more than 4,000 Minnesotans by failing to count their ballots. "That's why it's so critical for this process to move forward before the Minnesota Supreme Court and why Senate Republicans fully support Senator Coleman's efforts," he said.
Democrats fired a few salvos of their own.
"When you contest the results of an election, and you lose ground, you ought to know time is up," said New York Sen. Charles Schumer, chairman of the Democratic Senatorial Campaign Committee during the 2008 elections.
The new DSCC chairman, Sen. Robert Menendez of New Jersey, put out a statement saying, "It is now time to move on, and let Senator-elect Al Franken get to work for the people of Minnesota."
The 351 ballots counted Tuesday were on a list of 400 that the judges had considered opening; they discarded some because they lacked documentation or because they had been counted previously.
The ballots, which local officials had delivered to the secretary of state, were taken under tight security into the Supreme Court's courtroom at the Minnesota Judicial Center. Given the heightened interest in Tuesday's proceeding, state troopers watched the entrance to the courtroom and people wishing to enter were screened.
After the ballots were removed from secrecy envelopes, Poser -- flanked by Trimble and Elias -- went one by one through the stack, sorting the ballots into separate piles.
"Franken, Coleman, Franken," he read aloud. One of the votes counted was cast by Tim Stocke, an invalid from McGregor, Minn., whose ballot was at first rejected because his wife both filled out the ballot for him and witnessed it.
Trimble and Elias watched for anything on a ballot that cast doubt on the intent of the voter, but they didn't challenge any of the votes.
After reading the ballot breakdown, Poser handed the results to the panel. "I believe this concludes the procedures," said District Judge Elizabeth Hayden, one of the three members of the presiding panel.
Outside the courtroom, however, there was no indication that Coleman's challenge would end any time soon. Ginsberg said that the judges should have counted "10 times" the ballots just tallied.
Elias said an appeal would be wrong for Minnesota and unsuccessful in the end. Minnesotans deserve two senators at a time of national crisis, he said.
"The problem former Senator Coleman has is he lost fair and square," Elias said. "No amount of lawyering or sophisticated legal arguments is going to change that."
Meanwhile, it's possible that Pawlenty, a Republican, and Ritchie, a DFLer, will disagree on whether to issue an election certificate should the legal wrangling continue not only to the state Supreme Court but to federal court.
Asked how long a court dispute could delay issuance of a certificate, Ritchie said, "The Minnesota Supreme Court said ... it ends at the state court."
But Pawlenty spokesman Brian McClung said, "If one of the parties appeals to a federal court, a question will arise whether the federal court might stay the issuance of a certificate. We'll see what the courts determine."