Coleman with 2-vote lead after 3rd day of canvass

The State Canvassing Board review ballots
On the third day of the The State Canvassing Board's review of the challenged ballots, the board began reviewing the nearly 800 challenges from Sen. Norm Coleman.
MPR Photo/Mark Zdechlik

Secretary of State Mark Ritchie says the board charged with reviewing disputed ballots in Minnesota's U.S. Senate race will finish that part of the process today. But that doesn't mean the recount will be over.

The Minnesota Supreme Court has extended the recount to allow for the counting of wrongly rejected absentee ballots, but there's a hitch. The court ordered a wide array of officials, including the Coleman and Franken campaigns, to set a standard for identifying the ballots.

The Supreme Court ruling means that the winner of the 2008 Senate race will probably not be declared until 2009. It gives both sides a victory.

A challeneged ballot with a write-in
The infamous "Lizard People" ballot was thrown out by the state Canvassing Board today. The voter filled in the bubble for Al Franken, but also put "Lizard People" as a write-in candidate.
MPR Photo/Tom Robertson

Democrat Al Franken's campaign gets to see any wrongly rejected absentee ballots counted. Meanwhile Republican Norm Coleman's campaign gets its wish of setting a uniform process to identify those ballots.

And that's where things get tricky. The court said Secretary of State Mark Ritchie, local elections officials and the two campaigns need to come up with that process.

"I expect us to get to this pretty quickly," said Ritchie.

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Ritchie said he's confident that the campaigns can agree on a process, especially because there are only four legal reasons for an absentee ballot to be rejected. He said anything that falls outside of those four reasons should be counted.

"If somebody's going to vote and they want to make some kind of a statement of some sort, they may not get their vote counted."

But time is also a factor. Local election officials will have to sort and count as many as 1,600 wrongly rejected ballots after an agreement is reached. They will then have to issue a report to the State Canvassing Board with new vote totals by December 31, and the State Canvassing Board could have to resolve additional challenges from both campaigns.

Ritchie said it's possible the process will drag into the new year.

"So if you assume that some people will do it at the end, that means we will not be allowed to certify until after that. So that would make it a 2009, but early 2009 process," said Ritchie.

In a dissenting opinion, Supreme Court Justice Alan Page wrote that the court should not have included the campaigns in the process, because they have an interest in winning the election, not in making sure the process is fair.

Wrongly rejected absentee ballots became an issue after the Franken campaign identified voters who had their ballots rejected for no legal reason.

The five member State Canvassing Board requested that local elections officials sort and count any ballots that were wrongly set aside. The Coleman campaign argued in court that the ballots should not be included in the recount.

After the Supreme Court ruling, Franken attorney Marc Elias said he's hopeful they can reach an agreement on identifying the ballots.

"There's no question that there were improperly rejected absentee ballots. Everybody knows it. You all know it. You reported about it. The Coleman campaign knows about. The canvassing board knows it. That's beyond question," said Elias. "Now, whether or not the Coleman is going to do the right thing or whether it's going to insist that the sun rises in the west and sets in the east and the world is flat, I don't know."

Coleman attorney Tony Trimble said his side intends to cooperate with the court order.

"The Supreme Court has now ordered a procedure, which we requested, a uniform procedure to do something that will bind us all. Well, we're going to proceed with that procedure at this point," said Trimble.

The court's decision comes at a time when every vote matters. After the state canvassing board finished the third day of reviewing disputed ballots, Coleman is leading Franken by just two votes. But the outcome of the race is far from known, since thousands of challenged ballots withdrawn by the two campaigns have yet to be processed.

The board is also picking up the pace. Members processed nearly as many ballots on Thursday as they did on the two days before that. Most of the rulings have been monotonous, but every once in a while a ballot draws a chuckle.

On Thursday, there were write-in votes for Flying Spaghetti Monster, Jesse Ventura and the now infamous Lizard People. On that ballot, a voter filled in the oval for Franken, but wrote Lizard People in the write-in portion. Board members Kathleen Gearin and Eric Magnuson agreed that the ballot should not be counted, because it had two votes for U.S. Senate.

"If somebody's going to vote, and they want to make a statement of some sort," said Gearin.

"They may not get their vote counted," said Magnuson.

"They may not get their vote counted. This is an example of that. And I'm fairly certain they didn't mean it, but the rules are the rules. The statute is the statute," said Gearin.

The canvassing board said it's also set to rule first thing this morning on whether it should count duplicate ballots.

Coleman's attorneys are arguing that original and duplicate ballots have been mixed during the recount, perhaps creating a double count. Several board members, and Franken's attorney, have suggested that the canvassing board isn't the right venue for the complaint. They say Coleman may be better off using the issue to contest the outcome of the election in court.