State Supreme Court takes up issue of absentee ballots

  • Article by: MIKE KASZUBA
  • Star Tribune
  • December 17, 2008 - 11:58 PM

Minnesota's disputed U.S. Senate race went before the state Supreme Court on Wednesday, as Sen. Norm Coleman's campaign sought to keep improperly rejected absentee ballots from becoming part of the official recount.

After a 70-minute hearing, both Republican Coleman and Democratic challenger Al Franken awaited a ruling by the state high court that could uncomplicate one of the largest remaining issues in the race -- whether as many as 1,600 absentee ballots that may have been improperly rejected should be part of the recount now being completed by the five-member state Canvassing Board. With the candidates separated by such a narrow margin, the absentee ballots could be a deciding factor.

At Wednesday's hearing, lawyers for both campaigns were peppered with questions from the court, which was presided over by Justice Alan Page. Both Chief Justice Eric Magnuson and Justice G. Barry Anderson recused themselves from the proceedings because they were again busy Wednesday sorting through challenged ballots -- another critical issue in the recount -- as members of the Canvassing Board.

The hearing in a packed room began with Justice Paul Anderson testily responding to Roger Magnuson, the lead attorney for Coleman, who compared Minnesota's recount to the 2000 presidential election dispute that focused on the counting of ballots in Florida. "This is not Florida," said Anderson.

Coleman's campaign does not want the Canvassing Board to count any improperly rejected absentee ballots, saying it is not the proper body to settle that issue. Instead, it wants those ballots set aside and preserved in the event either campaign goes to court after the recount to try to get a judge to include them in the tally. The Franken campaign wants the recount before the Canvassing Board to include the ballots.

Magnuson argued that the Canvassing Board, which cannot legally order county and city election officials to count the ballots, confused matters last week when it recommended that local officials sort and count them. With some counties following the recommendation, and others not, the counts "will be inconsistent," said Magnuson, who served as legal counsel for the Florida Senate and Legislature in the 2000 case arising out of the presidential election.

Bill Pentelovitch, the lead attorney for Franken before the court, was at times also confronted by the five justices. Page said he did not understand why the disputed absentee ballots could not be counted afterward should a court challenge be mounted. "What's the difference?" he asked.

Pentelovitch replied that once the Canvassing Board finishes the recount and issues a certificate of election to the winner in the race, "the presumption [is] the person who has the certificate is the winner."

Justice Paul Anderson, who appeared to reserve his most pointed questions for the Coleman campaign, said he worried about the rights of an absentee voter who cast a ballot that was improperly rejected. "Why should a voter who does cast a ballot that's valid have to bring a [legal] contest [to get it counted]?" he asked. "That just doesn't seem right."

Mike Kaszuba • 612-673-4388

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