The three-judge panel hearing Minnesota's U.S. Senate recount trial has denied a request by Republican Norm Coleman to reconsider a ruling that narrowed the ballot categories in question.
The judges on Friday ordered that rejected absentee ballots in about a dozen of 19 categories should not be counted in the Senate race. The ruling limited the number of votes Coleman might be able to get counted as he tries to overturn Democrat Al Franken's 225-vote lead.
Coleman's legal team had asked the panel to reconsider the ruling because they say election officials in different areas counted similar ballots differently -- creating a systemic problem with the election -- and therefore more ballots should be counted.
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"That is a fundamental, inconsistency, fairness, equal protection problem that can't be waived by saying equal protection does nor does not apply to this case," said Ben Ginsberg, one of Coleman's attorneys. "It is a fatal flaw that the judges yet need to correct."
Coleman had wanted to count ballots in all but three of the 19 categories. He's argued that as many as 4,800 rejected absentee ballots were excluded inconsistently and should be counted.
Franken, on the other hand, asked the panel to take a hard line on counting additional ballots. He objected to most of the 19 the categories.
Franken attorney Marc Elias said Coleman's emphasis on unequal standards appears to be an effort by the Coleman camp to lay the foundation for an appeal in another court.
"The fact is their window is closing," Elias said. "That universe is shrinking and they're looking to build a record for appeal, and that is their right."
Coleman's attorneys have said they're confident they'll be able to overturn Franken's lead with the ballots that do get counted. They have neither confirmed nor denied the possibility of an appeal.
Last week's ruling does not specify how many ballots are now off-limits. But Coleman's attorneys say that by their estimates, the order eliminates leaves about 3,500 that may be counted. The judges excluded categories such as ballots submitted by voters not registered in the precinct where they live and late ballots by people in the military serving overseas.
Meanwhile, the trial continues Wednesday with elections officials from Scott and Stearns counties testifying about how their counties processed absentee ballots.