Winner of U.S. Senate race unknown until 2009

Examining the ballots
The five-member State Canvassing Board rexamines ballots after Coleman campaign complained of inconsistencies.
MPR Photo/Tom Scheck

Democrat Al Franken currently leads Republican Norm Coleman by 47 votes, but there are still more ballots to be counted.

The State Canvassing Board has scheduled meetings for the first week in January to finish the process and possibly declare the winner. But there are several outstanding factors that could delay the issue including a petition to the Minnesota Supreme Court that calls on the court to step into the recount process.

Secretary of State Mark Ritchie initially hoped that the recount would be complete before Christmas. But a recent court order and a pending petition before the state's high court will push the issue into the new year. Ritchie said the board charged with conducting the recount has scheduled meetings on Jan. 5 and 6. When reminded that the Senate will swear in its new members on the sixth, Ritchie said he wasn't operating under that body's timeline.

"We don't care as long as its accurate and done in a transparent way," Ritchie said. "We don't care when it's done."

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Ritchie said there are a few remaining issues that need to be resolved before a winner is declared. He said as many as 1,600 wrongly-rejected absentee ballots have yet to be opened and counted. The Minnesota Supreme Court set a deadline of Dec. 31 for that process to be completed.

Roger Magnuson, attorney for Norm Coleman
Norm Coleman attorney Roger Magnuson says the campaign has found instances of double counting during the recount.
MPR Photo/Tom Scheck

But both Ritchie and the campaigns requested a slight extension. If the plan is approved, Ritchie said his elections manager would collect the ballots on Jan. 2, and open them on the Jan. 4. He said the canvassing board would rule on any challenges from the campaigns on Jan. 5 and 6.

When asked if the 6th would be the final day, Ritchie said: "It's really hard to say. We don't know how many ballots will be under consideration as wrongly-rejected absentee. We don't know how many challenges will be made and we have no idea if the Supreme Court gives us any more work to do or not."

Ritchie mentioned the Supreme Court because that body held a Tuesday hearing on a petition put forward by Coleman's campaign. Coleman attorney Roger Magnuson said the campaign has found instances of double counting during the recount. He wants the court to forbid the canvassing board from accepting the recount results and require local elections officials to compare the Election night results with the recount results. He said the court's ruling could determine the winner.

"There are clear errors," Magnuson said. "Things weren't done right. What is the significance of those errors? This court ought not to remain passive because this particular issue may decide the entire election as to who is declared."

After the hearing, Magnuson told reporters that Coleman would gain more votes than Franken if the court rules in their favor.

Several justices appeared skeptical suggesting that the matter was better left to an election contest. Justice Helen Meyer also pressed Magnuson on whether he was 100 percent sure that double counting occurred. Meyer asked if a comparison was made of the number of people who voted with the number of ballots counted.

Attorney for Al Franken Marc Elias
Marc Elias, lead attorney for the Franken campaign, said he is confident that Franken will be declared the winner.
MPR Photo/Tom Scheck

"That's right," replied Magnuson, "we have the machine counts which seem many times to tie in with the original and duplicates."

Meyer said that the machine count is not the record of how many people voted in that precinct.

Franken's attorneys argued that if the court allows Coleman's campaign to go back and investigate the results in certain precincts, it would effectively start another recount since every precinct would have to receive the same scrutiny. The court took the issue under advisement but is expected to rule quickly.

Meanwhile, the State Canvassing Board also met on Tuesday to discuss the allocation of the thousands of challenges put forward by both campaigns. Heading into the meeting, Franken led Coleman by 48 votes but a technical correction switched the margin to 47 votes.

The Coleman campaign also asked the canvassing board to reconsider 16 rulings on ballots that the campaign said is inconsistent with their other rulings. The board examined the ballots but didn't switch the outcome. Board member Eric Magnuson said he was certain in all of his rulings.

"I saw nothing in any of those that gave me pause to change my vote," he said. "I suspect that if you went and gave me another 100 of them there wouldn't be any that I would think I got wrong."

After the meeting, Coleman's attorney said he is still positive that they'll win the recount regardless of the Supreme Court's ruling on the duplicate ballot issue. Franken attorney Marc Elias said he's confident Franken will be declared the winner.

"I am more confident about it today then I was when we started this and we have taken this step by step in the process," Elias said. "At each stage, we have said we're going to let this process work and as we have gone along the Coleman campaign has become somewhat more panic and somewhat more desperate."

When asked what the Senate would do if a winner is not certified, a spokesman for Democratic Senate Majority Leader Harry Reid said it was perfectly acceptable for the Senate to wait. He also dismissed any notion that Governor Pawlenty could appoint someone since the Senate would have to declare a vacancy first and he said that is unlikely.