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Board to start reviewing Coleman challenges

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A challenged ballot by the Coleman campaign
The Coleman campaign questioned this ballot because while the oval for the Presidency was filled in with pen, the rest were filled in with pencil, calling into question the ballot had been properly duplicated. St. Paul, MN November 20, 2008.
MPR Photo/Caroline Yang

Coleman currently leads Franken by 362 votes - but that margin is sure to change. In the meantime, the campaigns are waiting for the Minnesota Supreme Court to rule on the fate of another batch of ballots. 

Secretary of State Mark Ritchie said the canvassing board has 20 hours of work left to do, and  they'll stay late into the night on Friday to make sure they review all of the ballots. On day two of the State Canvassing Board's ballot review, the board removed many of the hiccups that slowed down the process the first day and started working with assembly line efficiency.

Secretary of State Mark Ritchie
Secretary of State Mark Ritchie leads a meeting of the State Canvassing Board to certify the results of Election Day and officially call for a recount of the U.S. Senate election in Minnesota.
MPR Photo/Tim Pugmire

One reason for the faster pace is that members appear to have reached agreement on certain challenges. Another is that the Franken campaign started withdrawing a greater number of challenges. Many coming as the ballots were called out.

However, there were still some ballots that stymied the board. Some were ballots where the voter missed the oval for any candidate. Minnesota Supreme Court Chief Justice Eric Magnuson said the board's chief intent is to set a standard for certain ballots and stick with it. 

"These are so subtle sometimes. We're trying our best," Magnuson  said. "We're trying to be consistent."

The board processed a total of 418 Franken challenges through Wednesday. 

Mark Ritchie and the State Canvassing Board
Secretary of State Mark Ritchie, along with the rest of the members of the State Canvassing Board, held a meeting to certify results from Election Day, and call for a recount in the U.S. Senate race.
MPR Photo/Tim Pugmire

Coleman's campaign has double that number of challenges remaining. But the fate of 150 of those challenges could be determined quickly when the board rules on a Coleman campaign argument. 

Coleman attorney Tony Trimble is asking the board to consider whether local elections officials counted some ballots twice during the recount. On some occasions, elections workers have to create a duplicate ballot because the machine won't accept the original. Trimble said both the duplicate ballots and the original ballots were counted during the recount. 

Trimble is basing that argument on the fact that some precincts garnered more votes during the recount than on Election Night.

"I mean if a precinct had, for example, 1,250 votes on Election Night and they're going to end up with 1,264, you've got 14 excess originals," Trimble  said. "I think my youngest daughter could probably figure that one out."

Several members of the canvassing board didn't dispute that there may be double counting but are questioning whether it's their role to weigh in on the issue. Board member Edward Cleary, who is also a Ramsey County judge, said the Coleman campaign may be better off using the issue to contest the outcome of the election in court. 

"We keep coming back to the fact that there may be double counting and someday someone can air that out and make factual findings along those lines," Cleary said. "We're not that group."

If the canvassing board decides this morning that it wants to consider the issue of duplicate ballots, Franken's campaign may also bring forward several hundred more challenges. 

Franken's attorney, Marc Elias, said it's faulty logic to suggest double counting is the only reason there would be a greater number of votes counted during the recount than on Election night. He said other things could be in play like election machines failing to count certain votes. Elias also complained that Coleman's team is trying to change the rules after they agreed to include the original ballots before the recount started. 

"What you saw today in the canvassing board hearing, with this argument over allegations of duplicate ballots, is just another effort by the Coleman campaign to cast doubt on this election and to try to halt the count," Elias said.

Meanwhile, both campaigns are awaiting a decision by the Minnesota Supreme Court regarding the fate of wrongly rejected absentee ballots. Coleman's campaign is asking the court to keep the ballots out of the recount. 

The canvassing board suggested last week that local elections officials should sort and count any absentee ballots that were wrongly set aside. Coleman attorney Roger Magnuson said after the high court hearing, that he was worried local elections officials are applying different standards when they reject the ballots. He said an election contest filed in court is a better place for the ballots. 

"And we think that that will ultimately result in the perception by everybody that things were done fairly and the ultimate result has legitimacy," Magnuson said.

During his arguments before the court, Magnuson suggested that Minnesota could become Florida if justices allow the ballots into the recount. He was alluding to the 2000 presidential race between George Bush and Al Gore. Justice Paul Anderson took issue with that comment.

"This is not Florida and I'm just not terribly receptive to you telling us that we're going to Florida and comparing it to that," Anderson said. "This is Minnesota. We have a case in Minnesota. Argue the case in Minnesota."

The Supreme Court is considering the issue but may rule quickly since it's an election-related case. Chief Justice Eric Magnuson and Justice G. Barry Anderson recused themselves from the proceedings because they sit on the canvassing board.