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Two weeks after the closest U.S. Senate election in Minnesota history, a massive hand recount of all 2.9 million votes gets underway today, with local officials working under the scrutiny of top lawyers brought in by both candidates.
At stake is possible control of the Senate, where Democrats are within a few seats of a filibuster-proof 60-vote majority, putting intense pressure on county auditors who now find they may have to explain every decision they made in the closest race in the country.
That pressure ratcheted up Tuesday as the campaign of Democrat Al Franken alleged in a last-minute brief to the state Canvassing Board that more than half the state's county auditors had botched the canvassing process and may have improperly rejected ballots that should have been counted.
Attorneys for Franken argued that 49 of Minnesota's 87 counties "have failed, in violation of the unambiguous requirements of state law, to canvass fully the results of the election." As a result, they said, the board could not certify the accuracy of the vote totals reported by the counties. They asked the board to reconsider the rejected ballots in the recount, which could add hundreds, perhaps thousands, of ballots to a contest in which Republican Sen. Norm Coleman leads by 215 votes.
The Canvassing Board, made up of two state Supreme Court justices, two county judges and Secretary of State Mark Ritchie, delayed ruling on whether to include the rejected ballots until next week and did not certify vote totals in the Senate race, saying instead that the results fell within the half-percentage point margin needed for an automatic recount.
"I'm in favor of taking some more time since we got the last facts about 10 minutes before we walked in here," said Ramsey County District Chief Judge Kathleen Gearin, at a packed hearing room in the State Office Building in St. Paul. Supreme Court Justice G. Barry Anderson echoed that sentiment, saying the board had been inundated with a "blizzard of paperwork" in the hours leading up to its first meeting.
The board certified results in all but four races: the Senate contest and three legislative races, which also will go to recounts.
"Tomorrow and Thursday will be really hard days," Ritchie said Tuesday, as officials in 107 locations statewide got set to start the Senate recount. "The good news is that in about a month, we will have counted every ballot in Minnesota and will have results."
The Franken campaign said Tuesday's events meant the marathon election had, in some ways, gone back to its beginning. "The scoreboard reads 0-0, with 2.9 million [votes] to go," said Marc Elias, a national recount expert who is the campaign's lead recount attorney.
Elias, who said his legal team consisted of at least six lawyers, said the Canvassing Board had handed Franken a partial victory by ruling that the issue of the rejected absentee ballots "remains a live issue." He and other Franken spokesmen derided Fritz Knaak, Coleman's lead attorney, who said that the board actions were another sign that Coleman had won the election.
"The only person who has named Norm Coleman the winner of anything is Norm Coleman," said Franken spokesman Andy Barr.
While the Canvassing Board indeed said there was no certified winner in the contest, Knaak said simply, "That's not the way we see it at all." After an initial count and a post-election audit, he said, Coleman continues to lead Franken and that makes him the winner. "He's got more votes than the other side," Knaak said. "That's how it works in our system."
Knaak dismissed the Franken campaign's brief as "horseplay" and said much of what they've done since Election Day was maneuvering to get the dispute to the floor of a Democratically controlled Senate, which could choose to seat either of the candidates or reject them, forcing a new election.
Elias disputed that claim, saying that "the entire team's strategy is to let this process work out."
In a sign of how quickly events were moving, by Tuesday afternoon Elias said the legal brief filed that morning, which argued that many counties had not canvassed every precinct, was "moot" and "in the rear view mirror" following the Canvassing Board's actions.The Franken campaign also did not provide a list of the 49 counties, despite requests for the information.
On another point, Barr sidestepped how many questionable rejected absentee ballots the Franken side had discovered. On Monday, the campaign produced four examples and said there were indications there were at least "hundreds" of others. The campaign has made formal requests to counties for the number of rejected ballots, but complained it has been stymied in many cases.
KSTP-TV reported that it had contacted 37 counties, a check that found a total of 2,072 rejected absentee ballots -- not including Hennepin and Ramsey Counties, which refused to provide the information.
The Franken campaign has sued for access to the names of Ramsey County voters whose absentee ballots were rejected, and a court hearing on the matter is set for today.
Suit filed over ballot
Also on Tuesday, a college student from Minneapolis became what is believed to be the first voter to file a suit to get her rejected absentee ballot counted. Claire Bohmann, 19, a sophomore at the University in Washington in Seattle, voted for Franken but received a letter Nov. 3 saying her ballot had been rejected because she hadn't registered to vote. She was also sent a post card, dated Oct. 30, that she was registered.
Her attorney, Marshall Tanick, said the mistake might have been caused by her decision to bypass the September primary, which could have knocked her off the voting rolls. "We're asking the court to make them count her vote because she did everything proper and any error or confusion we attribute to voting officials -- not her," he said.
The suit, filed in Hennepin County District Court, names the city of Minneapolis and its elections director.
From Washington, Senate Majority Leader Harry Reid, D-Nev., praised the Canvassing Board's decision, saying "the race is too close to call and today's canvass is just one step in a process to ensure every Minnesotan's vote is counted." Reid is set to meet today with Franken to confer on the recount.
Meanwhile, Coleman, also in Washington, said Tuesday that he is "looking forward" to the recount. "I have confidence that we will do this the Minnesota way, that there are good people who are working on to make sure it's done the right way" he said.
Staff writers Kevin Duchschere, Kevin Diaz and Curt Brown contributed to this report. Patricia Lopez • 651-222-1288 Mike Kaszuba • 651-222-1673