- The Washington Times - Sunday, January 4, 2009

State and campaign officials in Minnesota completed the two-month recount Saturday of ballots in the U.S. Senate race with the tally of mistakenly uncounted absentee ballots, leaving the Canvassing Board free to declare either Democrat Al Franken or Republican Norm Coleman winner of the recount, probably Monday or Tuesday.

Mr. Franken, who had had a 49-vote edge already, pushed his lead to 225 votes, gaining 176 votes more than Mr. Coleman on Saturday in a review of formerly sealed absentee ballots. Unless Mr. Coleman wins a pending court petition that seeks to add hundreds more ballots to the recount, the counting is done.

But Minnesota law lets the losing candidate file an “election contest” within seven days of the end of the recount, which would throw the whole race into the courts and block final certification of a new senator. Mr. Coleman’s term as senator officially expired Saturday.

“I’d say it’s close to inevitable” that the losing candidate will sue, said Edward Foley, an election-law scholar at Ohio State University who has closely monitored the Minnesota recount.

Lawyers for both campaigns have laid the groundwork for lawsuits through public comments and legal maneuvering. In recent weeks, as Mr. Franken clung to a small lead, Mr. Coleman’s lawyers promised a lawsuit over their claim that some ballots duplicated on election night wound up being counted twice in the recount.

Mr. Franken stands to lose as many as 110 net votes if the court were to take Mr. Coleman’s side on the duplicate-ballot issue. The Coleman team also could make an issue of the loss of 133 ballots in a Democratic-leaning precinct in Minneapolis, which the Canvassing Board resolved by using the election night count for that precinct. If Mr. Coleman were to prevail on that, Mr. Franken would lose 46 more net votes.

The standards for accepting or rejecting absentee ballots are fodder for either candidate in a lawsuit, and Mr. Foley predicted that a lawsuit could also make use of issues that so far have received little or no attention.

“I suspect there are other things that lawyers for both campaigns have flagged internally, that they haven’t necessarily brought to public attention yet,” he said.

Any lawsuit would go to a three-judge panel to be appointed by state Supreme Court Chief Justice Eric Magnuson. What’s not clear is whether Justice Magnuson would make the appointments himself or delegate the decision since he served on the Canvassing Board.

State law requires that a trial start within 20 days of a lawsuit being filed. The burden of proof would fall on the candidate who filed the challenge, who would have to provide evidence that the Canvassing Board declared the wrong man the winner of the recount.

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