Lawyers for Democrat Al Franken are asking the state Canvassing Board to rule on an unknown number of rejected absentee ballots before it orders a recount in the U.S. Senate race.
The Board is scheduled to meet Tuesday to certify the Nov. 4 election results and order a mandatory statewide recount in the tight senate contest. Unofficial results now show Republican Norm Coleman ahead of Franken by just 215 votes.
The Franken campaign filed a lawsuit over rejected absentee ballots last week in Ramsey County District Court. The Democrat wants data from all 87 counties on the number of rejected absentee ballots and the reasons they were invalidated.
A hearing is now scheduled Wednesday, but that's the same day county election officials throughout the state will begin recounting nearly 3 million ballots.
Franken attorney Marc Elias said the state Canvassing Board should rule on the absentee ballots before certifying the election results.
"In an election this close every vote matters and every vote should be counted," Elias said. "And whether it's a close election or not, these individual Minnesotans have a right to have their vote counted on the same basis that every other Minnesota vote did who cast a lawful ballot."
Franken campaign officials still don't know how many absentee ballots were rejected statewide, but they say at this point the number is at least "in the hundreds."
Only about a dozen counties have responded to their data request in advance of the court hearing. Still, Elias said the Canvassing Board must count all lawfully cast absentee ballots before it can move forward.
"To be clear what this is, if it were to move forward with Minnesotans having been disenfranchised, people who cast lawful ballots not having those ballots counted, it would be a problem both under Minnesota state law and under the United States Constitution," Elias said.
Lawyers for Norm Coleman's campaign have a different view of those ballots. They claim the data Franken wants disclosed would violate voter privacy. Last week, Coleman campaign spokesman Mark Drake accused the Franken campaign of trying to strong arm local officials into counting invalid ballots.
The state Canvassing Board is made up of Secretary of State Mark Ritchie, two state supreme court justices and two Ramsey County judges. Ritchie says the board will consider the Franken campaign's request on absentee ballots.
"I think the canvassing board should hear all concerns raised by the public and especially the campaigns, and then it's up to the canvassing board to decide," he said. "I'm certainly not pre-judging and I'm not trying to bias the canvassing board's discussion or decision making in anyway."
Meanwhile, a tri-partisan group of former public officials offered its own plan to support and encourage the secretary of state.
Former Republican U.S. Senator Dave Durenberger said the group came up with a set of principles to guide the recount process and ensure that every ballot counts.
Durenberger said the recommendations include recount judges using tables that are low enough to allow the public and media to see every ballot.
"It's probably not going to happen 3 million times that you're going to be there with a camera and or some other way to photograph it," he said. "But the idea that the process is open to that I think is going to be very persuasive to a lot of people in Minnesota that the vote count officials and the canvassing board and everybody else has gone as far as they possibly can go to guarantee that every one of those votes counts."
Durenberger says he's confident in Minnesota's election laws and its elected secretary of state.
He said the party affiliation of Mark Ritchie, who's a Democrat, should not be a concern.