Does rule of law trump right to vote?

It's a recount debate that seemingly pits the right to vote against the rule of law: When, if ever, do you count absentee ballots that were rejected by mistake and should have been included in the Election Day results to begin with?

DFLer Al Franken, who has trailed Republican Sen. Norm Coleman in every tally except his own, wants those ballots included in the U.S. Senate recount. Every vote lawfully cast should be counted, Franken recount attorney Marc Elias said.

That's just the point, says Coleman recount attorney Fritz Knaak -- rejected absentee ballots weren't actually cast in the election. If they are to be counted, he says, it should be done at the direction of a court, not by the state Canvassing Board whose job is limited to counting votes already cast.

The issue will be the main order of business Friday for the five-member Canvassing Board, which will meet to discuss an opinion from the state attorney general's office on what might be done with those ballots.

The board also will discuss what to do with 133 ballots that apparently are missing from a Minneapolis precinct, Secretary of State Mark Ritchie said. When ballots can't be found, he said, past practice has been to substitute figures registered by the voting machine on Election Day.

The Coleman campaign, which says it hasn't been convinced that the ballots ever existed, said Wednesday that it wants the hand recount results used for the precinct -- which would exclude the 133 ballots -- and not the voting machine tape.

Complete and accurate

Most counties have been busy this week sorting out absentee ballots rejected for reasons other than the four specified by law, creating so-called fifth piles that will indicate the scope of the issue, Ritchie said.

In some places, the numbers have been significant. Minneapolis found 171 improperly rejected absentee ballots. Dakota County, with 60 percent of its rejected absentee ballots sorted, tabulated 110 that were wrongly rejected.

Last month, the attorney general's office told Canvassing Board members that state law doesn't let them count uncast votes in a recount, such as rejected absentee ballots, and that those votes should be dealt with in court.

That's not the case everywhere. For example, in Massachusetts, if rejected absentee ballots are later found to be "acceptable," they may be included in a recount, said Brian McNiff, a spokesman for Secretary of the Commonwealth William Galvin.

Ritchie said the attorney general's office on Friday could list a range of options in statute and legal precedent that the board might use in addressing the ballot issue.

Three nonpartisan political organizations -- League of Women Voters Minnesota, Common Cause Minnesota and Citizens for Election Integrity Minnesota -- on Wednesday urged the Canvassing Board to include mistakenly rejected absentee ballots in the final vote tally.

"It is imperative to the citizens of Minnesota that every legitimate vote is counted," the groups said in a statement.

It's a good point, said Edward Foley, an Ohio State University professor who runs the law school's election law program. He asked whether it makes sense for the board to certify a winner knowing that not all validly cast votes were counted.

On the other hand, he said, "It's not good to change the rules for counting ballots after they've been cast." That raises constitutional questions of due process and equal protection violations, he said.

He said the Canvassing Board's most important task, however, is to rule unanimously. That's more important than whatever its decision will be, he said, because a split vote might help spur post-recount litigation and delay a final resolution.