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To count or not to count -- that's the question in the U.S. Senate recount, as the state Supreme Court ponders whether to let the final stage of ballot tallying proceed or to redesign the process once more.
As state officials prepare to count 953 disputed absentee ballots Saturday, the court is expected to decide soon whether to instead open the door to a new centralized review of about 2,000 such ballots, as requested by Sen. Norm Coleman -- or at least order the review of hundreds of additional ballots identified by the Coleman and Al Franken campaigns.
If the court refuses the Coleman request, an attorney for the GOP senator said Friday, he would likely lose the recount and immediately move to legally contest the state Canvassing Board's certification of final results.
On Friday, the court asked various parties -- the Franken campaign, Secretary of State Mark Ritchie and the counties -- to provide pertinent information by 9 a.m. today. That deadline would seem to suggest the court may decide immediately.
Coleman attorney Fritz Knaak said the court's request for more information before deciding "acknowledges what we now know to be unequivocal: the process is broken."
The 953 ballots that are to be counted, out of about 1,350 reviewed, were forwarded to the state on Friday and could prove decisive.
But even if Franken maintains his unofficial 49-vote lead when Congress convenes Tuesday, the chairman of the National Republican Senatorial Committee served notice that he and other GOP senators would stand in the way of seating him until Coleman's legal options are exhausted.
"Anybody who would be inclined to jam this issue through the Senate and seat a senator who has not been determined to be the winner of the election," said Texas Sen. John Cornyn, "would have to consider the damage to the Senate and its reputation as an institution. It would be a recipe for chaos."
Under Minnesota law, an election contest, or legal challenge, must be filed in Ramsey County District Court within seven days after the Canvassing Board certifies results in a statewide recount. Such a filing would prevent the governor and secretary of state from issuing a certificate of election until the contest was over.
The case would be heard in Ramsey County by three judges appointed by Chief Justice Eric Magnuson. In the case of a split, the majority opinion would rule, but appeals are allowed.
Rulings and requests
Under a Supreme Court ruling last month, local election officials and the campaigns were supposed to agree on which absentee ballots were wrongly rejected and send them to the Secretary of State's office by midnight Friday, for counting this weekend.
On Wednesday, Coleman's campaign asked the court to scrap the regional reviews, claiming that standards being used varied from place to place. Instead, it asked to have all such ballots -- upward of 2,000 in all -- reviewed in a uniform way by state and campaign officials in St. Paul.
In Friday's order seeking additional information, the court directed seven counties -- Anoka, Hennepin, Pipestone, Ramsey, St. Louis, Sherburne and Stearns-- to say whether they considered any ballots identified by the campaigns in addition to the 1,350 tabbed by local officials as improperly rejected, as ordered earlier.
If not, the order says, the counties should explain why.
Knaak and Coleman co-counsel Tony Trimble said that inconsistent standards applied across the state have blocked consideration of another 650 absentee ballots that may have been wrongly rejected, including 48 that they displayed Friday as examples.
The Franken campaign, which also has identified additional ballots it says were wrongly rejected -- although not as many -- had no comment Friday.
But Ritchie said the counting of the 953 ballots will begin as planned this morning at the State Office Building in St. Paul. With campaign representatives observing, officials will open the ballots and tally them.
As was the case earlier in the recount, the campaigns will be allowed to challenge how those ballots are awarded, and the state Canvassing Board will review the challenges when it meets Monday afternoon.
Hennepin wraps up work
One of the counties that finished its review of rejected absentee ballots Friday was Hennepin, where the Coleman and Franken campaigns agreed to count nearly 80 percent of 326 ballots considered.
Among the 74 ballots that didn't make the cut, the rejections were roughly split between the two campaigns, with Franken turning down 36 and Coleman 33 (five were withdrawn by the county).
Both campaigns unsuccessfully renewed their attempts to expand the number of ballots to be reviewed beyond the 326 identified by county officials. Attorneys for the campaigns couldn't agree on adding either the 170 ballots Coleman wanted, or a Franken proposal to add 30.
David Lillehaug, a Franken recount attorney, said the review in the state's largest county was "smooth," but he criticized the Coleman campaign for essentially asking the Supreme Court at the last minute for a "do-over" that could scuttle the county's work.
Coleman recount attorney Bill McGinley declined to comment.