- The Washington Times - Thursday, November 27, 2008

ST. PAUL, Minn. (AP) | When it comes to votes in Minnesota’s drawn-out U.S. Senate election, five are particularly crucial.

That’s how many people sit on the state Canvassing Board, which was to gather Wednesday to decide what to do about Democrat Al Franken’s request to count absentee ballots that his campaign says were wrongly rejected by poll judges.

Sen. Norm Coleman’s team is arguing that the board lacks the power to include those ballots in the high-stakes recount.

Mr. Coleman, a Republican, entered the recount guarding a 215-vote lead out of 2.9 million ballots cast. Through Tuesday night, state figures showed that his lead stood at 238 votes when Nov. 4 tallies are compared with new counts in precincts where the recount is done.

That doesn’t factor in the nearly 3,600 challenges that will get sorted out later, meaning the absentee fight could prove critical.

Mr. Franken’s advisers say they know of more than 6,400 disqualified absentee ballots. Not all of the ballots would be fair game if the Franken push prevails.

Many were turned away because the voter wasn’t properly registered. Other voters showed up in person after submitting a mail ballot, canceling the first ballot.

The Franken campaign has been pressing hardest for information on voters whose absentee ballots didn’t count because there were problems with their signature or where possible clerical errors occurred.

The attorney general’s office - run by a Democrat - has recommended against opening the rejected absentee ballots as part of the recount.

Both campaigns offered legal arguments to the canvassing board, which is made up of the secretary of state, two state Supreme Court justices and two district judges.

Lawyers for Mr. Franken, an ex-“Saturday Night Live” personality, are citing a 1962 Supreme Court decision to argue that ballots should not be excluded because of technical mistakes or “an innocent failure” to comply with voting statutes.

His lead attorney, Marc Elias, said Tuesday that he hopes the board will approve the counting of votes for which the ballot rejection is debatable.

“It has the opportunity to do that and it has the authority, and indeed, I would say it has the obligation to do so,” Mr. Elias said.

But Mr. Coleman’s campaign sees its case as bolstered by 1858 and 1865 decisions by the Minnesota Supreme Court that discuss the “purely ministerial” role of canvassing boards in disputed elections.

“Boards of canvassers have no authority to pass upon the regularity of an election or the qualifications of persons voting thereat,” reads the 1858 opinion in a disputed state Senate race.

Fritz Knaak, Mr. Coleman’s lead recount lawyer, said that including the rejected absentees would be “an unprecedented step, one that has never been done before in Minnesota and one that we believe undermines the legitimacy of the overall process that’s been created.”

Mr. Knaak said it’s not clear who would analyze those ballots and decide on them if they were included. He said the issue is best left to a lawsuit that could come after the recount if the losing party contests the result.

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