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Members of the State Canvassing Board, from left, Judge Kathleen Gearin, Chief Justice Eric Magnuson, Secretary of State Mark Ritchie, Associate Justice G. Barry Anderson and Judge Edward Cleary during deliberations in November

Bruce Bisping, Star Tribune

State may be one seat short when Senate convenes

  • Article by: MIKE KASZUBA, KEVIN DUCHSCHERE and PAT DOYLE
  • Star Tribune staff writers
  • December 24, 2008 - 5:19 PM

As the U.S. Senate recount pulled to the end of Week 5 on Tuesday, the prospect of delays on two fronts made it more likely the state will have only one senator seated when Congress convenes in two weeks.

The state Canvassing Board postponed one key decision in the recount, involving the allocation of votes from withdrawn ballot challenges. Meanwhile, state officials and the campaigns sought more time to comply with a state Supreme Court order to count wrongly rejected absentee ballots.

Those developments came as yet another unresolved matter went before the Supreme Court -- how to settle a dispute over original and duplicate ballots, and whether they may have been double-counted in some cases.

Tuesday's events did little to clarify what will happen if neither Republican Sen. Norm Coleman nor DFLer Al Franken is declared the winner by the time Congress convenes Jan. 6.

Asked if Gov. Tim Pawlenty might move to fill the gap, spokesman Brian McClung said Pawlenty hadn't yet consulted with the state attorney general, but "our office has looked at this and it appears the governor only has the authority to appoint in the case of a permanent vacancy and this situation likely wouldn't apply."

Secretary of State Mark Ritchie, who chairs the five-member Canvassing Board, was asked repeatedly Tuesday whether the panel could certify a winner by Jan. 6. Ritchie said the board was not concerned with Congress' convening Jan. 6 -- but also said he believed there was a chance it could finish by then.

"If the stars align" on a number of issues -- ballot challenges, absentee ballots, "snowstorms and other things that we care about -- then, yes," he said.

The board had hoped to allocate votes Tuesday from several thousand ballot challenges that the campaigns had previously withdrawn. However, discrepancies between a draft list from the secretary of state's office and the campaigns' own records prompted a delay. The board agreed to convene again Dec. 30 to award those votes and to meet on Jan. 5 -- and possibly Jan. 6 -- to settle the issue of improperly rejected absentee ballots.

16 challenges, unchanged

One issue that seemed clear Tuesday, however, is that the board has little appetite for looking back at decisions it has already made.

Asked by the Coleman campaign to reconsider 16 challenged ballots that the board had ruled on last week, the panel in each case stood by its original decision. At times, the members gathered around a table -- Supreme Court Chief Justice and board member Eric Magnuson stood with hands on hips looking over colleagues' shoulders -- as they reviewed the ballots.

"If you gave me another hundred of them, there wouldn't be that many that I think I got wrong," Magnuson said.

The Franken campaign described the Coleman request as an unsuccessful effort "to throw a Hail Mary pass" to try to gain more votes, and said the Democrat still had an unofficial lead of 47 votes.

Lawyers for Coleman said that, while disappointed with the board's decision on the 16 ballots, they were confident Coleman would gain votes when the reconciliation of the withdrawn challenges was finalized.

Attorney Tony Trimble said the campaign had discovered about 20 "clerical mistakes" in the draft report of the vote distribution. Some of the mistakes, he said, should result not only in a vote for Coleman, but a vote deducted from Franken.

The Franken campaign said it had found some discrepancies, as well.

Rejected absentee ballots

Also at issue Tuesday were improperly rejected absentee ballots.

In a ruling last week, the state Supreme Court directed state and local election officials and the campaigns to work out a way to sort and count improperly rejected ballots -- estimated at up to 1,600 -- and set a Dec. 31 deadline. An agreement has not yet been finalized.

On Tuesday, Attorney General Lori Swanson, in conjunction with several county attorneys and the campaigns, asked the court to move the deadline to Jan. 2. In addition, in the motion, the secretary of state's office sought to have until Jan. 4 to open and count ballots that all parties agreed had been improperly rejected.

As part of their motion, officials cited a need to preserve ballot secrecy. They noted that local election officials have released lists of people whose absentee ballots were rejected and said that the reporting of results from small precincts, in particular, might identify the voter.

A subset of absentee voters whose ballots were rejected was another focus of attention.

Ritchie said that in cases when not all parties -- including the campaigns -- agreed that an absentee ballot was improperly rejected, the voter would get a letter sometime after Jan. 2 telling them what happened. Those individuals, Ritchie said, could then initiate a separate court challenge to have their ballot counted.

He and officials from his office, peppered by reporters with questions, acknowledged that it was unclear how someone would go about that. It would be very difficult to go to court to get their absentee ballot counted in time to have it added to the total by the time the Canvassing Board meets Jan. 5 to, perhaps, declare a winner.

Duplicate ballots

In Tuesday's Supreme Court arguments on duplicate and original ballots, Coleman lawyer Roger Magnuson said there was double-counting in 25 precincts, many of them in Minneapolis. He asked the court to order local election officials to reconcile the number of voters with the number of ballots cast and eliminate any counted twice. The Coleman campaign has said 130 to 150 ballots may have been double-counted.

"This particular issue may decide the entire election," Magnuson told the court.

But Franken lawyer William Pentelovich said that the claim of double-counting lacks evidence and that discrepancies can be explained in other ways.

"Anyone who comes in here today and says they can explain what happened is guessing," he said.

Magnuson argued that discrepancies between Election Night and recount results indicate that ballots were counted twice -- first when duplicates went into machines on Election Night, and again when the originals that couldn't be processed by a machine were tallied during the hand recount. But some justices raised the possibility that election officials may have neglected to feed duplicates into machines on Election Night, undercounting votes until the originals were considered.

The justices didn't say when they would rule, but are expected to decide quickly.

mkaszuba@startribune.com 651-222-1673 pdoyle@startribune.com 651-222-1210 kduchschere@startribune.com 651-292-1064

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