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Al Franken and Sen. Norm Coleman each got good news and bad news Thursday, as one of the wildest elections in Minnesota history took yet another pair of startling turns.
The Minnesota Supreme Court said improperly rejected absentee ballots must be counted by the state Canvassing Board, something Coleman tried to prevent. But they won't be counted immediately, and Coleman and Franken must agree on which ones are tallied.
Meanwhile, as the state Canvassing Board continued working its way through challenged ballots, DFLer Franken all but erased Republican Coleman's lead in the U.S. Senate recount and appeared poised to pull ahead today. But his gains could in turn prove short-lived when thousands of previously disputed ballots are added to the tally.
Franken came within a few votes of Coleman after the Canvassing Board resolved hundreds of challenges that Coleman had filed against votes that were awarded election night to the DFLer. Coleman challenged those ballots as ambiguous.
But while the board made progress toward its goal of settling all challenged ballot disputes, the court ruling could postpone a final outcome for weeks.
The court ruled against Coleman's attempt to block the Canvassing Board from counting any improperly rejected absentee ballots, but said such ballots can be counted only when both campaigns and local officials agree they have been improperly excluded.
In doing so, it ordered the campaigns of Coleman and Franken, along with Secretary of State Mark Ritchie and local canvassing boards, to establish a process for jointly identifying mistakenly rejected absentee ballots. The court said they should then be added to the tally.
With as many as 1,600 absentee ballots improperly rejected by local elections officials, those votes could be a deciding factor in a razor-tight race.
Ruling draws praise, criticism
Lawyers for both candidates said they were pleased with the court ruling.
"We're very happy with the decision," said Coleman campaign attorney Fritz Knaak, who said he and Franken's attorneys are working to negotiate an understanding on how improperly rejected absentee ballots will be identified.
Franken campaign lawyer Marc Elias said: "We're happy that the Supreme Court rejected the Coleman campaign effort to stop the count."
But the requirement that candidates agree on which absentee ballots were improperly rejected could throw a new curve ball into the process and even prevent legitimate votes from being counted.
"The order does not guarantee that the candidates and their political parties will agree on any rejected ballot," said Associate Justice Alan Page in a stinging dissent. "Instead, the court's order will arbitrarily disqualify enfranchised voters on the whim of the candidates and political parties."
David Schultz, a Hamline University professor specializing in election law, agreed.
"This is really out of character with Minnesota law to now suddenly give campaigns a veto over the counting," he said, calling it a "weird proviso that basically says everybody has to make nice and cooperate on this one."
Schultz said Coleman is more vulnerable to rejected absentee ballots from St. Louis County and elsewhere where Franken did well in the election. Officials in Hennepin County have tallied 336 absentee ballots that they agreed were improperly rejected.
Schultz said the ruling increases the likelihood that the election dispute won't be resolved before the Senate convenes in early January.
Equal protection issue
The court opinion, signed by Associate Justice Helen Meyer, said that county canvassing boards lack authority under state law to count improperly rejected absentee ballots, but that correcting the error should not have to wait for court action, as the Coleman campaign contended.
Meyer ordered the counties and candidates to report accepted absentee ballots to the state Canvassing Board by Dec. 31.
She instructed local officials and candidates to agree on which improperly rejected ballots should be reported to the board.
Meyer said the Canvassing Board cannot certify the final results of the recount until it gets the tally of absentee ballots acceptable to the parties, or a statement that they did not reach agreement.
She warned lawyers for the campaigns against bringing frivolous objections to counting improperly rejected ballots.
Associate Justice Paul Anderson, like Page, also dissented over the decision to enjoin county canvassing boards from correcting errors without the consent of the candidates.
He cited the case of two people who were rejected for lack of registration when in fact both were registered.
"I am perplexed by [the Coleman campaign's] position that county canvassing boards do not have the ability to review and correct obvious errors in the counting and recording of absentee ballots," Anderson wrote.
The Franken campaign wanted the county and state canvassing boards to count improperly rejected absentee ballots as well.
Knaak said any agreement with the Franken campaign on absentee ballots might also include a deal on ballots that the Coleman campaign has challenged as being double counted.
The Coleman campaign wants the state Canvassing Board to reject those ballots, but said the board is not the proper forum to settle the rejected absentee ballot issue. Instead, it wants those ballots set aside and preserved in the event either campaign goes to court after the recount to get a judge to include them in the tally.
The Coleman campaign argued that the state Canvassing Board violated the equal protection clause of the U.S. Constitution by not setting uniform procedures for counties to identify and count improperly rejected ballots.
But Guy-Uriel Charles, a visiting professor of constitutional and election law at Duke University, said they are on weak ground with that argument. "Their best argument is that some counties are going to count them and others aren't. ... But the proper response to that argument is an order telling all the counties to count all legal votes."
Staff writer M.L. Smith contributed to this report.
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