Recount inches closer to court challenge

Canvassing Board
The Minnesota State Canvassing Board discusses rejected absentee ballots.
MPR Photo/Tim Pugmire

The Canvassing Board hearing lasted only an hour, but the action taken could mean that Minnesota's already long U.S. Senate race could be headed to the courts for an extended overtime.

The five-member Canvassing Board, which consists of Secretary of State Mark Ritchie, two Minnesota Supreme Court justices and two Ramsey County judges, said it wasn't its role to determine whether any absentee ballots were wrongly rejected.

Minnesota Supreme Court Chief Justice Eric Magnuson said the board wasn't determining whether the ballots should be counted, but instead was fulfilling its role under state law.

Mark Ritchie
Minnesota Secretary of State Mark Ritchie chairs the state canvassing board.
MPR Photo/Tim Pugmire

"We want to make sure that every vote is counted, and we will not stand in the way of having a determination as to whether a vote was legally cast or not," said Magnuson. "It is simply not, however, a function that we are either charged with or are equipped to do."

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Magnuson said the appropriate recourse for voters who think their ballots were wrongly rejected is to take the issue to court. In fact, several board members suggested that's where they think the entire matter will end up.

Mark Ritchie said about 12,000 absentee ballots were rejected for various reasons, and he said 500 to 1,000 may have been mistakenly rejected.

Despite its ruling, the board did offer a hopeful sign for Franken when it sought legal advice on whether local election officials could sort through absentee ballots.

Several board members wanted to make sure that all accepted ballots are counted, and that there are valid reasons for each of the rejected absentee ballots. The board plans to meet at a later date to discuss the issue.

"I'm certainly not going to take off the table the possibility of an election contest, if ... I'm told that is the only way to get all of the lawful votes counted."

Franken's team considered the hearing a mixed blessing.

"Let me be clear -- we disagree with the canvassing board's decision," said Marc Elias, Franken's lead recount attorney.

Elias maintains the Canvassing Board has the power to order a review of rejected absentee ballots. Still, he's hopeful that when the board reconvenes, it will come up with an option for counting improperly rejected absentee ballots.

Elias said concerns about some ballots not being counted only bolster his resolve to push the issue, whether it's to the Canvassing Board, the courts or directly to the U.S. Senate.

"I'm certainly not going to take off the table the possibility of an election contest, if, at the end of the day, I'm told that in fact that is the only way to get all of the lawful votes counted," said Elias.

Elias said he thinks Franken is on track to win the hand recount, even without the rejected absentee ballots.

The top Democrat in the U.S. Senate, Majority Leader Harry Reid, weighed in on the recount today, issuing a statement saying the Canvassing Board's decision is "cause for great concern," and added that no voter should be disenfranchised.

Fritz Knaak, the attorney for Republican Norm Coleman's campaign, said he was pleased with the board's decision. He said he's now focused on ensuring that the recount is fair, but said he's planning for all contingencies, including a court challenge.

"We're still focused on getting this to the Canvassing Board, and getting what we think is going to be a Coleman victory certified by the Canvassing Board," said Knaak. "I have also been saying from the get-go that I've seen this as a tactic and a strategy on part of the Franken campaign as they've been moving toward, in my view, preparing themselves for an election challenge."

Knaak said he won't take issue with the counting of any absentee ballots that were wrongly disqualified or overlooked, but added he didn't think there would be more than a dozen such ballots.

Knaak also said he intends to sit down with Franken's attorney to start cutting back the number of challenged ballots being put forward by both campaigns.

Since the recount started last week, the campaigns have challenged nearly 3,600 ballots. In Sherburne County alone, they challenged 801 ballots.

The arms race prompted a mild scolding from several members of the Canvassing Board, which has the task of reviewing all of the challenged ballots at the end of the recount.

Board member Kathleen Gearin, a Ramsey County judge, said the board will consider all of the challenges presented -- but warned the campaigns that they have a responsibility to be thoughtful.

"It's not only about their duty as lawyers, their ethical obligation, it's about being respectful to the voters," said Gearin.

Local elections officials are still on track to finish the hand recount by Dec. 5. The Canvassing Board is scheduled to start reviewing the challenged ballots on Dec. 16.