The Supreme Court heard the arguments without its Chief Justice Eric Magnuson and Justice G. Barry Anderson. Both have recused themselves from the dispute, because they are members of the state canvassing board.
The Coleman campaign petitioned the state Supreme Court to intervene in the ballot controversy Monday, three days after the state canvassing board made two decisions that appeared to favor Coleman's rival Democrat Al Franken.
The Board approved election night totals from a Minneapolis precinct where 133 ballots disappeared. The Board also requested that local election officials determine whether absentee ballots were wrongly rejected, and if so, add them to the recount total.
Coleman campaign attorney Roger Magnuson started off his argument to the five justices saying that on Dec. 12th, the state canvassing board with the best of intentions accepted an invitation to go to Florida 2008, a reference to the 2000 presidential election between George Bush an Al Gore.
That comparison did not sit well with Justice Paul Anderson.
"I know you've been to Florida...this is not Florida, and I'm not terribly receptive to you telling us that we're going to Florida, and we're comparing to that," said Anderson. "This is Minnesota. We've got a case in Minnesota, argue the case in Minnesota."
Magnuson said he understood but, he said Minnesota needed to avoid some of the errors made in the Florida 2000 case.
"What we don't want to do is replicate errors that were committed in Florida and get into a legal thicket that are unnecessary to address," said Magnuson.
The arguments quickly fell into parsing words, definitions and statutes. At one point, there was even a discussion on the definition of what is a validly cast ballot.
Magnuson told justices that counties don't have the authority to go back and revisit the rejected absentee ballots. If there's a question about them, he said the Franken campaign should bring them to the court after the canvassing board is finished with the recount.
Justice Alan Page said the statute is clear that there are four reasons for rejecting a ballot.
"And it goes on to say that no other reason is available for rejecting the ballot. So I'm trying to figure out what evidence you need to determine are going to inform those four criteria for rejecting or accepting the ballot," said Page.
Magnuson said the devil was in the details
"It's an illusion that there's this nice, clear fifth pile are clearly wrongfully rejected ballots," said Magnuson.
Franken's attorney Bill Pentelovitch said justices should deny Coleman's request, because the state canvassing board has already recommended county election officials identify and count those ballots mistakenly rejected.
"Our position is the state canvassing board committed no error, wrongful act or omission, and therefore the petition should be denied," said Pentelovitch.
That statement drew a question from Justice Lori Gildea that started a discussion between the two.
"What about the Secretary of state's office," asked Gildea.
"They have done nothing wrong," said Pentelovitch.
"And so the argument from the Coleman campaign, before the election, the Secretary of State's office promulgated a recount guide that said that if there's a recount, we're not going to look at whether absentee ballots were properly rejected. am i right that that recount guide was promulgated before the Nov. election," said Gildea.
"I believe that is correct," said Pentelovitch.
Gildea suggested that maybe the Secretary of State's office erred.
"Arguably the Secretary of State's office has changed the rules. And I wonder if that is not the error that this court is being asked to address," said Gildea.
"I don't think that's the error that's been presented to you," Pentelovitch.
"Do you think that's an error," asked Gildea.
"I don't think there's an error, and I don't think that's the issue today," said Pentelovitch.
The state Supreme Court typically rules quickly on election cases, because time is of the essence. That means a ruling could come as early as Thursday.