An attorney for the Sen. Norm Coleman's reelection campaign today asked the Minnesota Supreme Court to stop the state canvassing board from certifying the U.S. Senate election until officials can resolve any double-counted votes.
This is the second time in about a week the Coleman campaign has asked the state's highest court to intervene in a dispute about the recount.
Chief Justice Eric Magnuson and Associate Justice G. Barry Anderson recused themselves from the dispute, just as they did in last week's ballot court hearing. Both are members of the state election canvassing board overseeing the recount.
In this latest petition, the Coleman campaign asked the Court to stop the canvassing board from what the campaign contends would be double counting of some ballots.
The campaign had asked the state canvassing board to address its concerns on the issue earlier, but the board declined, saying it didn't have the authority to do so. Coleman campaign attorney Roger Magnuson said the board's decision could lead to an result he called "unthinkable."
"We have this interesting irony that a number of them, including including two justices of this court, said there was a high likelihood said that in doing this they would have double-counting in the ultimate result they," said Magnuson.
Justice Alan Page questioned whether it was clear whether there were any double-counted ballots in the recount.
"But isn't the problem there that's based on speculation, because we don't have a record in front of us. We don't know one way or the other," said Page.
Magnuson replied there were some things already known.
"Some things we do know, and what we really know, is that election law rules were not followed in approximately 25 precincts," said Magnuson.
But at least three justices at various times asked Magnuson why not wait until the canvassing board certifies the election and then challenge the results.
Magnuson replied that the justices intervened last week and should again.
"Why now," asked Magnuson. "Because there was the possibility that valid votes, absentee votes were not being counted. Here there's a very high likelihood, according to the canvassing board, that double votes are going to be counted."
The Franken campaign's attorney Bill Pentelovitch, however, disagreed.
He told the court that there isn't any hard evidence of double-counting of ballots. He said anyone who comes into court and says they know is simply guessing.
"It's speculation on my part, it's speculation on Mr. Magnusons part, and you're not going to get to the bottom of it," said Pentelovitch. "There's too many possibilities for dispute. It's not like last week where you had four reasons were you could reject and if it wasn't one of those reasons, you had an obvious error."
Pentelovitch also said if the court decides to follow Magnuson's plan for revisiting whether there was any double-counting in 25 precincts, then the court would have to order a recount of all 4001 precincts to be fair.
The hearing ended without any indication from the justices about when they would issue a ruling. Typically in election cases they rule quickly.
Last Thursday, the state Supreme Court ruled on a previous Coleman campaign challenge that both parties called a win.
The Coleman campaign asked the court to stop counties from adding wrongly rejected absentee ballots to their recount totals, or at least set uniform rules as to how counties should open and count those ballots.
A majority of the court ruled up to 1,600 absentee ballots could be included in the recount, but only after the Franken and Coleman campaigns, the Secretary of State and local elections officials agreed on a way to identify them. The court said the campaigns and the officials must submit their amended reports to the state canvassing board New Year's Eve, but the parties today asked to extend that deadline to January 2nd.