Senate recount: State law is clear on challenged ballots, except in the details

In the sunken first floor of a state government building in St. Paul, behind a locked door and under the silent gaze of a security camera, sit thousands of ballots that could decide the U.S. Senate race.

They're the ballots challenged by the campaigns of Republican Sen. Norm Coleman and Democrat Al Franken, waiting to be awarded to one candidate or the other, or neither.

But with a week to go before the state Canvassing Board begins ruling on challenged ballots, major questions remain about how the process will work.

It's still not clear whether the campaigns will be allowed to argue their case to the board on each ballot, whether a simple majority of the five-person board will prevail in the case of split decisions, and how long this phase of the recount will play out.

Minnesota counties have sent envelopes containing 6,655 challenged ballots to a FedEx site in St. Paul, where two employees of the secretary of state's office picked them up and drove them to the state government building.

The secretary of state's office has begun sorting the challenges by precinct, ballot number, candidate making the challenge and other characteristics. Included are 2,183 challenges that have been withdrawn by the campaigns, but some of those are ballots where the ruling of the original election judge is unclear. The office plans to award the withdrawn challenges to candidates before the Canvassing Board convenes Tuesday to consider the remaining disputes, said Deputy Secretary of State Jim Gelbmann.

Meanwhile, this Friday, the board will consider whether to count some rejected absentee ballots.

Secretary of State Mark Ritchie says he expects the state Canvassing Board to complete its review of challenged ballots in four days. He says the five-member board is likely to spend perhaps two to three minutes per ballot on "head scratchers." Maybe 240 such ballots could be decided in an 8-hour day; 960 during the four days that the canvassing board has scheduled for the review.

But the expectation that that will be enough is based on a couple of large assumptions.

One assumption is that the campaigns will reduce their total challenges to fewer than 1,000 genuine disputes by next Tuesday. Another is Ritchie's expectation that the campaigns will not play a major role in the board's review of the challenges.

If either of those assumptions proves untrue, the Canvassing Board action could drag on for many days.

State election rules say a candidate who challenges a ballot or his representative "may present the basis for the challenge to the canvassing board."

But Ritchie and others say the issue has not been resolved.

"The statute contemplates some right of each campaign to present ... information or argumentation regarding why certain challenges should be upheld, and I anticipate that we will participate fully in that process," Franken recount lawyer Marc Elias said Tuesday.

Still, Elias and the Coleman campaign said they were hoping to get guidance from the secretary of state's office soon on what if anything they'll be allowed to say to the Canvassing Board.

Procedures undetermined

The board is made up of two state Supreme Court justices, two district court justices and Ritchie, who chairs the panel. It was unclear Tuesday whether a split board vote on a ballot would be decided by majority opinion, or whether the ballot would be rejected for lack of an unanimous vote.

"We will probably talk about the process we want to use in it," he said. "So far we haven't done that."

Also unresolved is what standard of evidence the board will apply when deciding whether to accept or reject a challenge.

"We're in somewhat uncharted territory," Ritchie said.

One stumbling block is what to do about withdrawn challenges where the initial ruling by the local election or table judge isn't noted on the ballot. Gelbmann said in most cases the election judge's ruling -- and the voter's intent -- can be determined by examining the voter's marks on the ballot.

"The reality is the ones that are being withdrawn are the frivolous challenges," Gelbmann said. "It's going to be pretty clear what the table judge ruled."

But if too many challenges remain for the board to handle from Dec. 16 to Dec. 19, "then we can reconvene again after the religious holidays and we can reconvene again in January," Ritchie said. "And we can continue to convene around the schedule of the judges and justices until we tackled all challenged ballots."

The new Congress convenes Jan. 6.