A day after judges in the Senate recount trial heard about Norm Coleman resisting even valid absentee ballots when he was ahead in the race, they were told Thursday that Al Franken pushed for counting even flawed ballots when he was behind.

When Franken was trailing during the early stages of Minnesota's U.S. Senate recount, the panel was told, he stressed that voting absentee was a constitutional right.

"Even where a ballot does not meet all of the statutory requirements, mere technicalities or irregularities cannot be used to exclude absentee ballots," a Franken lawyer wrote in November to state elections officials. "As a general rule, as long as there is substantial compliance with the laws and no showing of fraud or bad faith, the true result of an election should not be defeated by an innocent failure to comply strictly with the statute."

Franken's interest in counting every valid absentee ballot was highlighted Thursday by the Coleman campaign during the fourth day of its court fight to overturn Franken's 225-vote lead. The state Canvassing Board certified those results on Jan. 5, after counting 933 previously rejected absentee ballots, which had added to a 49-vote advantage that Franken had recently attained..

Now Coleman wants to review as many as 11,000 other rejected absentee ballots, contending that many of those also were wrongly discarded because of innocent errors. The Franken campaign has accused him of conducting a "fishing expedition."

Each side's arguments

After Thursday's hearing, Coleman lawyer Ben Ginsberg argued that "the Franken campaign was all for bringing in rejected absentee ballots" when it helped their case, but now that they don't need them, "they are against bringing in the wrongly rejected absentee ballots."

But Franken attorney Marc Elias said his campaign's legal filings last year don't contradict its more recent assertions. "We've always said that the vast majority ... of rejected absentee ballots were properly rejected," Elias said.

The legal posturing came on a day when the Coleman camp dropped a key part of its case: fighting 171 ballots that went missing for a time from a Maplewood precinct and were later found and counted.

Ginsberg said the Coleman campaign dropped its opposition to the ballots because it "became convinced that the chain of custody was solid, and because the ballots were there to be physically recounted."

Elias applauded the decision and said it "narrows the range of issues."

Still pursuing other claims

At the same time, Coleman attorney Joe Friedberg told the three-judge panel hearing the court case that his side isn't withdrawing its challenge to 133 ballots from a Minneapolis precinct that couldn't be found during the hand recount. The Canvassing Board decided to use the Election Night machine count for the precinct, in a largely DFL area.

Additionally, Coleman is challenging more than 100 other Minneapolis ballots that he contends may have been counted twice.

But the claim Coleman's lawyers are pinning most of their hopes on involves the 11,000 remaining rejected absentee ballots. In recent weeks they've said that about 4,500 of those ballots fit categories that resemble the 933 ballots that were wrongly rejected and subsequently included.

In questioning Deputy Secretary of State Jim Gelbmann on Thursday, Friedberg pointed out that Franken attorneys last year urged elections officials to exercise some latitude when determining whether to accept flawed absentee ballots. Friedberg read a portion from a Franken legal paper that said the right to vote "extends equally to absentee ballots."

"Does that ... say essentially that absentee ballots are a right as much as the basic right to vote?" Friedberg asked Gelbmann.

Gelbmann agreed.

Friedberg also noted that a Franken legal paper said the right to vote "is more than a nominal right," and asked Gelbmann, "Is there anything in that sentence about the right to vote being a privilege rather than a right?" Gelbmann said no. Coleman lawyers have accused Franken attorneys of reducing the significance of absentee voting by suggesting it is a privilege.

On Wednesday, Gelbmann testified that Coleman, when he was leading the recount in December, resisted accepting 1,346 absentee ballots that county elections officials said were wrongly rejected. Ginsberg said the campaign determined that an in-depth reconsideration of absentee ballots wasn't appropriate during the recount and was better suited to a court contest, the kind of proceeding that is underway now.

Pat Doyle • 651-222-1210