The campaigns of Republican Sen. Norm Coleman and Democrat Al Franken have competing ideas about exactly what votes can legally be included in the recount.
Franken attorney Marc Elias said not including wrongly rejected absentee ballots would amount to tossing out votes and disenfranchising hundreds of Minnesotans.
"We've got lists and lists of people where the counties themselves they made a mistake," he said. "It's acceptable that errors are made. It is not acceptable that when an error is made the burdon of that error falls only on the voter."
Norm Coleman's campaign says even if some absentee ballots were wrongly rejected, they don't belong in the recount because they were never counted initially.
Coleman attorney Fritz Knaak said it's not a matter of stripping Minnesotans of their voting rights. Knaak said Franken is trying to stuff the ballot box with votes not allowed under recount rules.
"I know that they're trying to cast aspersions on us because we're disagreeing with them on this point, that somehow we don't every voter voting," he said. "That's absolutely not true. And, as a point of fact, we have no reason to expect that at least half of those absentees that weren't able to vote are Coleman votes. This isn't about whether or not those are Coleman or Franken votes. This is about following the rules."
Knaak says not following the rules could make it easier for the loser of the recount to contest the results either in court or in the U.S. Senate.
The two arguments are similar on those missing Minneapolis ballots.
The Franken side wants the machine tally for the precinct from which the ballots disappeared to be used in place of the hand count. The Coleman campaign says, because it's a hand recount, only ballots that were cast and remain in existance can be tallied as part of it.
The Franken side says not counting the votes would disenfranchise voters. The Coleman campaign says letting the machine tally into the hand recount would break the rules.
Secretary of State Mark Ritchie chairs the state canvassing board. Ritchie said the board will try to make decisions on the two ballot questions after it gets guidance from the Minnesota Attorney General's office.
Ritchie said it's possible more than one in 10 rejected absentee ballots was set aside for no legal reason. And he indicated that there should be a way to address that.
"There are a lot of different ways to handle that, but I think people are concerned that that's a very high number of errors and that we can't just say 'well, tough luck, soldier. Go get yourself a lawyer and sue us.' That's just not a Minnesota type answer," he said.
On the missing Minneapolis ballots, Ritchie said it's not the first time something like that's happened. He said Minnesota election law has built in remedies for human mistakes.
Ritchie said after the board moves beyond the wrongly rejected absentee ballots and missing ballots, he hopes members will begin talking about how they plan to handle four days of meetings next week. That's when the canvassing board starts and hopes to finish deciding the fate of the ballots the campaigns have challenged.
At the end of that process the board should be in a position to declare a recount winner. If the candidates or their supporters still aren't satisfied they could contest the election in court.