DFLer Al Franken's campaign scored significant victories in the U.S. Senate recount Friday, as the state Canvassing Board approved the use of Election Day results for 133 Minneapolis ballots that can't be found and also recommended that counties sort and count absentee ballots that were mistakenly rejected.
But the five-member board revealed some fissures. That came when its two Supreme Court justices put the brakes on the apparent hopes of its two district judges to declare in advance that the board would accept the new results that include the previously rejected absentee votes.
The board chose instead to wait until those votes come in before deciding whether to accept them.
Coleman campaign officials planned to file a request today for an order from the state Supreme Court requiring counties to follow consistent standards for counting their rejected absentee ballots. They said they hoped to have a decision by early next week.
"This is the kind of chaos the board has walked us into that we are trying to avoid," said Coleman attorney Tony Trimble.
Marc Elias, Franken's lead recount attorney, called the Coleman petition "an extraordinary action to try and halt this count and re-disenfranchise these voters. ... This is all just smoke and mirrors. They are hoping to run out the clock, delay the counting of these ballots."
Earlier this week, more than half the state's counties and larger cities began to separate out wrongly rejected absentee ballots from those legitimately turned back under state law. Based on the numbers tallied so far by 49 counties and cities, officials estimated that there may be as many as 1,600 absentee ballots that should have been counted but were mistakenly excluded.
The board decision on the Minneapolis ballots means that Franken trails Republican Sen. Norm Coleman by 192 votes. Had the board accepted Coleman's argument that only the ballots that were recounted be accepted, his lead would be 238 votes.
The Franken campaign was plainly delighted with the outcome. The campaign believes he stands to gain from counting improperly rejected absentee ballots.
"It was a good day for the Franken campaign. It was a good day for all the voters of Minnesota who were concerned that their lawful ballots may not be counted," said Elias.
Board's authority debated
At the board meeting, Attorney General Lori Swanson told members that they have no authority to order counties to reopen their canvasses and go back through the rejected absentee votes. But she said that case law made it clear that they can ask counties to do that work and to accept those revised figures when they're done.
Secretary of State Mark Ritchie, who chairs the board, said afterward that he wasn't worried about the response from county officials, despite the extra hours of work already spent on the recount.
"I believe that when they all hear that the state Canvassing Board is recommending this, and that the message is ... we want to be as accurate as we can be, that we'll have excellent cooperation," he said.
In comments to the board regarding the missing Minneapolis ballots, Swanson cited a decision by the 2002 Canvassing Board. Based on an attorney general's opinion, she said, the Election Day results may be used instead of the hand-recount tally.
That previous board decision had been overturned by a Mower County district judge in a case litigated by none other than Coleman's lead recount attorney, Fritz Knaak, who was at Friday's board meeting and said he was astonished that Swanson "danced" around the case.
"It's the only precedent and it's clearly on point," he said. "There's no question in our statutes that the hand-[recount] is what's preferred ... If I looked slack-jawed, I was just marveling at the dancing that she was doing with Minnesota case law."
The challenges challenge
After the Canvassing Board meeting and news about Coleman's court petition, Washington County election director Kevin Corbid said the county will be "on standby mode" until things are further sorted out. The county has already determined that 34 ballots may have been improperly rejected, with an additional two dozen or so questionable because of issues related to witnesses and addresses.
"We're just going to hold tight here until we can get some more direction," Corbid said.
Joe Mansky, Ramsey County's elections director, said he will be consulting with county attorneys on Monday to seek more direction about the Canvassing Board's request. The county has determined it has 156 improperly rejected ballots, 34 of them from St. Paul.
"If we get an order from some place or if the county attorney advises us to open them up and count them, we'll open them up and count them," Mansky said.
Deputy Secretary of State Jim Gelbmann, reporting to the Board on the magnitude of the wrongly rejected absentee ballots, said that 40 percent of 319 rejected absentee ballots in Duluth had been turned back because they lacked dates along with the signatures of the voters and/or their witnesses. State law doesn't require a date along with the signatures, he said.
Despite the attention paid to rejected absentee ballots, the board clearly was worried about a bigger task awaiting it when it meets again Tuesday: tackling the mountain of challenged ballots that each campaign socked away during the recount process.
Board members warned the campaigns in no uncertain terms Friday that it would be to their benefit to withdraw as many frivolous challenges from their piles as possible. They will have to examine each challenged ballot to determine who the voter intended to vote for, and Ritchie calculated that at best they may be able to handle 1,000 ballots before the hoped-for deadline next Friday.
But despite more than 2,000 withdrawn challenges, board members still faced a stack of nearly 4,500 ballots to peruse.
"My goal is to count every legitimate vote," said Supreme Court Chief Justice Eric Magnuson. "I need all the help I can get to do that."
Ritchie also pleaded for help from the campaigns. The challenged ballots, he said, are "the big gorilla in the room ... Getting through those so that we give proper attention to the challenges that have merit remains the largest challenge for the state Canvassing Board."
The Franken campaign announced Friday that they were withdrawing another 750 challenges, whittling down their pile to about 1,300. Knaak said the Coleman campaign also would be working to reduce their number of challenged ballots.
"I do find it ironic that while [Canvassing Board members] are contemplating our making every effort to reduce the number, they are increasing our workload significantly by sending us these confusing orders and directives and requiring more lawyers putting in more hours to make this work right," Knaak said.