Local elections officials are expected to resume recounting votes in the U.S. Senate election on Monday after taking time off for the Thanksgiving holiday.
The entire recount must be done by next Friday, Dec. 5. The State Canvassing Board then meets on December 16 to start reviewing challenged ballots. The board intends to declare either Norm Coleman or Al Franken the winner a few days later.
But even then, the election may not be settled. A court challenge is likely, and both sides are preparing for the possibility that the Senate itself could weigh in.
After saying for weeks that he was going to take the recount process one step at a time, Democrat Al Franken's attorney now appears to be jumping ahead.
On Wednesday the State Canvassing Board rejected Franken's appeal to review any rejected absentee ballots, but the board did leave open the chance that they could examine any rejected ballots that were discarded for errors outside the voter's control. Afterwards Franken's Attorney Marc Elias said he would continue to work to make sure that all legitimate votes are counted.
"There are a number of ways that this can happen. Whether it is at the county level, before the State Canvassing Board, before the courts of Minnesota or before the United States Senate, we do not know, but we remain confident that one way or another, all lawful votes will be counted in this election," said Elias.
The Senate's top Democrat Harry Reid also weighed in on the canvassing board's ruling. In a statement he called the decision "a cause for great concern" and urged Minnesota authorities to ensure that no voter is disenfranchised. The comments by Elias and Reid have increased the potential that the Senate may take the rare step of weighing in on the race.
"Ultimately, the Senate has complete authority to determine who was elected," said Washington University political scientist Steven Smith.
According to Smith the Constitution allows the Senate to be the final arbiter of its membership. Smith said the Senate does so by determining the qualifications of each member. On most occasions, Smith said the Senate simply accepts a state's election certificate, but it has diverted course a few times.
"There is a motion under Senate rules and precedents that allows any Senator to make a motion to refer the credentials to a committee, presumably the Senate Rules and Administration Committee, which has jurisdiction over election matters, in order to delay action on it," explained Smith.
In other words, the Senate could start its own investigation into the election and vote counting. If that action is taken, it's conceivable that Franken's argument regarding rejected absentee ballots could be reconsidered by the Senate.
"So, if this is like cases in the past in the House and the Senate, we could have staff members, or even Senators, sitting there looking at these contested ballots. It could come down to that," said Smith.
Smith said the Senate last weighed in on a serious election contest in 1974.
The contest involved a dispute between two New Hampshire candidates. After several recounts, the Senate moved to seat the Democrat. The motion was brushed back several times by Republicans who filibustered the issue. After months of wrangling, the Senate declared the seat vacant and ordered another election, which the Democrat won.
The possibility that the Senate, which is now controlled by 58 Democrats, could weigh in on Minnesota's election is a worry for Republican Norm Coleman's campaign.
For weeks Coleman's attorneys and Republican surrogates have warned that Franken was laying the groundwork for the Senate to consider the election.
Coleman spokesman Mark Drake called on Franken to abandon any efforts to get the Senate to weigh in on the race when the body seats its new members in January.
"We fear that that's where it's headed, and I think Al Franken owes it to the people of Minnesota to reject any and all efforts to stop a Minnesota Senator from being sworn in on the 6th. If the recount shows that Norm Coleman prevailed, as we expect it to. Al Franken should respect that," said Drake.
Drake said the Coleman campaign is preparing for a lengthy fight either in court or in the Senate.
Political scientist Steven Smith doubts the Senate will get involved. But he said there could be a real temptation for Democrats to consider the option, if Franken loses to Coleman by only a few dozen votes. But he said Democrats know a nasty floor fight could take away from all of the other business they want to conduct over the next several months.