State Supreme Court weighs a temporary Sen. Franken

As both sides hurled taunts and accusations Wednesday, lawyers for DFLer Al Franken and Republican Norm Coleman braced for a showdown today in the state's highest court on whether Franken should be seated in the Senate while their courtroom election fight continues.

Franken attorney Marc Elias called the recount trial -- Coleman's legal challenge of Franken's 225-vote lead in the certified recount results -- "a shrinking case" and said the law demands that the Democrat be seated in the meantime to give Minnesota the two senators it deserves.

At 9 this morning, the Minnesota Supreme Court will hear Franken's motion to be granted a provisional certificate of election.

Gov. Tim Pawlenty, a Republican, and Secretary of State Mark Ritchie, a Democrat, have declined to sign an election certificate because state law says none can be issued before the legal battle ends.

Elias seemed to suggest Wednesday that federal law trumps state law in this regard, although he added that he thinks state law is on their side as well.

"The governor and the secretary of state have failed to meet their obligations under federal law, we believe they've failed to meet them under state law, and ... we will put that to the court," he said.

But Coleman attorney Ben Ginsberg said the move by Franken to be seated was one of a number of signs of "desperation ... from the Franken campaign" -- particularly in the wake of a ruling Tuesday that allows Coleman to introduce evidence and question witnesses about some 4,800 rejected absentee ballots that the campaign believes may have been validly cast.

"I think they've got a pretty good idea what's in those 4,800 ballots, which is why they filed their papers," Ginsberg said.

At the same time, he said those ballots weren't selectively chosen to favor Coleman.

Suspecting that Ginsberg is wrong about that, the Franken campaign on Wednesday asked the three judges hearing the election trial for permission to pursue its own claims on several hundred absentee ballots that it says were validly cast but not counted.

The motion didn't specify a number, but it referred to a counterclaim Franken filed last month listing 673 such ballots. The Franken request says it would "refine" that number, "eliminating some ballots and adding others."

Evidence on ballots heard

Meanwhile, the trial continued as the three-judge panel heard testimony about 200 rejected absentee ballots offered for reconsideration by the Coleman lawyers.

Washington County elections manager Kevin Corbid spent most of the day on the witness stand, taking questions from Coleman attorney Joe Friedberg and Franken attorney David Lillehaug about individual ballots and the process that officials followed on Election Day and during the recount.

Friedberg questioned Corbid about ballots that might have been wrongly rejected because the required registration materials were mistakenly sealed inside the "secrecy envelope" along with the ballot. Friedberg said the Coleman team wants those votes counted.

On another subject, Lillehaug asked Corbid why some Washington County precincts showed lower vote totals in the recount than on election night. Corbid said he believed it was because some ballots were fed through the voting machines twice on election day, but that he had no concrete evidence of that.

Lillehaug suggested it was more likely that ballots were lost, or that election judges made mistakes at the polling place.

The Coleman campaign has said that more than 100 ballots in mostly DFL precincts may have been double-counted.

Kevin Duchschere • 651-292-0164