Recount: No hanging chads, but plenty of hang-ups

With just two weeks left before a new Congress convenes, Minnesota's Senate recount has reached Florida-grade levels of confusion and controversy. Want proof?

On Wednesday, State Supreme Court Justice Paul Anderson bristled at a lawyer's comparison of Minnesota's situation to the famous presidential recount meltdown in the Sunshine State. By Thursday, Anderson was dissenting from his own court's recount ruling and noting as a bright spot his belief that the court's order is only a "preliminary skirmish" in "an extended legal contest."

Thursday was Dec. 18. Florida's agony in 2000 had ended on Dec. 12. While the campaigns of Sen. Norm Coleman and Al Franken talk of cooperation, they are engaging in court fights over votes that will almost certainly further delay any decision.

"The two parties are going to have to decide, each of them separately, whether they want to have this over," said Fred Morrison, a professor of constitutional law at the University of Minnesota. "If they decide they would rather have a fight in a Minnesota court, then neither of them is going to be elected on the 6th of January. We're going to have a vacancy until this is sorted out."

The two sides are heading into a crucial week. On Monday, they are expected to get a new vote count after Secretary of State Mark Ritchie allocates withdrawn ballot challenges to the candidates. On Tuesday, the Supreme Court will consider Coleman's claim that some votes in Franken strongholds were counted twice. And both sides will try to devise a process for counting any absentee ballots that were mistakenly rejected.

Although there has been speculation that Gov. Tim Pawlenty might make a temporary appointment if the seat remains vacant when Congress convenes, Senate Democrats would disallow it. The U.S. Constitution gives the Senate final say over seating its members.

"We don't believe he [Pawlenty] has the authority to do that," said Jim Manley, a spokesman for Senate Majority Leader Harry Reid, D-Nevada.

"It's an invitation to a court action," Morrison said.

There was some new sparring Saturday, with Franken's lead recount attorney, Marc Elias, predicting that the Democrat would be leading by 35 to 50 votes after Ritchie allocates withdrawn challenges. Coleman spokesman Mark Drake dismissed the claim at "just more bluster and hot air."

The Canvassing Board will meet Tuesday to approve the allocation of those ballots.

Voters confused, weary

No matter which candidate ultimately prevails, it appears increasingly likely that some voters will be losers.

"I thought I followed the instructions," said Arnfelt, a Coleman supporter and first-time voter. "We should be able to have a say as to why our ballot wasn't counted."

State officials say as many as 1,600 absentee ballots were apparently mistakenly rejected and could decide the election. But the Supreme Court ruling gives Franken and Coleman the power to reject some of those ballots, rather than leave the decision to county canvassing boards. They have until Dec. 31 to send accepted absentee ballots to the state Canvassing Board, and are still trying to figure out a procedure for determining which ones they will approve.

Associate Justice Alan Page dissented from the court's ruling, saying the candidates "are likely to be more concerned with their own election prospects than with protecting the absentee voter's right to vote."

A candidate who is leading would have an incentive to block improperly rejected absentee ballots that could erase his margin. A losing candidate would have an incentive to go to court, and Morrison said he expects that will happen if enough disputed absentee ballots remain that they could close the gap.

And it's not only candidates who could sue.

Some voters whose absentee ballots were initially rejected -- and whose votes may now be decided by the campaigns -- are understandably perplexed.

Ray Hermanson of Roseville had his absentee ballot rejected along with his wife's. The cryptic reason cited by Ramsey County for the rejection of the Hermansons' ballots -- "AB materials for R-1 issued, should have been R-2."

Hermanson said he has been following the recount drama every day, but has grown indifferent about which man ultimately goes to the Senate. "I'm kind of a Coleman man. By the same token, maybe Franken won't be too bad," he said.

Improvised solutions

The comparison to Florida's disputed presidential election in 2000 touched a nerve with Anderson, the state Supreme Court justice, as recently as Wednesday. During arguments before the court, Coleman attorney Roger Magnuson said the state Canvassing Board was "accepting an invitation we believe to go [the route of] Florida" in broadening the recount to include improperly rejected absentee ballots.

After the hearing, Magnuson -- who represented the Florida Senate and Legislature in that controversy -- was asked about his exchange with Anderson.

"Once you start improvising solutions, and you go away from traditional process, you risk threatening the legitimacy of the results," he said.

Even as the recount appears to edge closer to ultimately being decided in court, attorneys for both Coleman and Franken again Friday said they were not concentrating on where the controversy ends up. "I know the press wants to focus on what happens, you know, after Christmas and what happens, you know, down the road," Elias said. "We're taking this one step at a time."

Fritz Knaak, a recount attorney for Coleman, echoed Elias' comments for avoiding a final courtroom outcome. "I think we're both preferring that that not be the case."