Panel's order a setback for Coleman

Attorneys and judges
Minnesota Judges Kurt Marben, left, Elizabeth Hayden center and Denise Reilly, confer with Al Franken's attorney David Lillehaug and former Senator Norm Coleman's attorneys Joe Friedberg, and Tony Trimble, right, during Minnesota's U.S. Senate vote recount trial.
AP Pool/ Richard Sennott, Star Tribune

Attorneys for Republican Norm Coleman said Tuesday they're preparing for an appeal after a three-judge panel hearing the recount trial said it would review a maximum of 400 absentee ballots.

The court order said the 400 ballots need to be delivered to the Minnesota's Secretary of State's office in St. Paul by noon on Monday. The order is a setback for the Coleman campaign, which had asked the panel to review about 1,300 ballots after a statewide recount put Democrat Al Franken ahead by 225 votes.

"We are disappointed but we feel the court is wrong and we will appeal," said Coleman attorney Ben Ginsberg, suggesting the campaign will take the case to the Minnesota Supreme Court.

An analysis of the 400 ballots shows that many of them come from three heavily Democratic counties: Hennepin, Ramsey and Saint Louis. A majority of the residents of all three counties voted for Democratic candidates in both the U.S. Senate and presidential races in November.

If all 400 votes do get counted, and those end up being the only votes the court considers, Coleman would have to get more than five votes for every vote Franken gets.

"You never give up hope, but it becomes a much longer shot," Ginsberg said. "The odds get a little longer this way but it's still a mathematically possibility."

The 400 ballots include absentee ballots the court believes should be opened and counted because they complied with Minnesota law, absentee ballots where relevant information was illegible, and absentee ballots the court otherwise requires the original in order to make a finding.

The three judges -- Elizabeth Hayden, Kurt Marben and Denise Reilly -- have not yet ruled which candidate received the most validly cast votes, and the court said not every ballot identified in the order will ultimately be opened and counted.

Once the ballots are delivered, the court will determine which of them should be opened, sorted and counted. That will occur in open court on Tuesday, April 7.

Franken attorneys praised the court's order Tuesday afternoon. Franken lead attorney Marc Elias said his team was "very pleased with the court's order."

"Obviously, we feel very good where we stand, but we're going to wait until Tuesday because we don't know what's in these envelopes," Franken said in a telephone conference.

Throughout the seven-week trial, Coleman's attorneys argued that some counties rejected absentee ballots that others counted, because counties applied election rules to similar ballots differently.

On Feb. 13, the three-judge panel refused to consider a dozen of 19 separate categories of rejected ballots, which shrunk Coleman's universe of potential ballots to open and count. The judges excluded categories such as ballots submitted by voters who weren't registered and ballots that arrived late from persons living overseas.

Coleman's goal was to get the panel to consider as many unopened ballots, largely from Republican-leaning counties, as possible in hopes of surpassing Franken's 225-vote lead. The biggest pile came from votes cast as absentee ballots that for myriad reasons had been earlier rejected.

"The court continues to disenfranchise thousands of Minnesotans whose votes should be counted, whose votes would have been counted, if they lived in just a different jurisdiction," Ginsberg said.

In its order, the court noted they reviewed nearly 19,000 pages of evidence filed by both campaigns, heard from 142 witnesses, including 38 county officials and 69 voters.

Secretary of State Mark Ritchie, who oversaw the statewide recount, said his office is pleased to see the often tedious process moving forward.

"We feel like this is great momentum for resolving this," Ritchie said "And we're pleased that the court has been so specific in this order."