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Ramsey County Judge Kathleen Gearin tells the state Canvassing Board that it does not have authority to review each rejected absentee ballot in the U.S. Senate race. The other four members agreed, but some said local officials need to look over rejected ballots to see if any should be counted. staff photo by Don Davis

Board rejects Franken absentee ballot request

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ST. PAUL - They should be considered, but not by us.

That was the state Canvassing Board's message Wednesday when it turned down a request by Al Franken's campaign to include rejected absentee ballots in Minnesota's U.S. Senate recount.

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Jurists on the Canvassing Board said they lack authority to order rejected absentee ballots to be included. But board members also expressed concern some valid votes may not have been counted, and they indicated counties could be asked to sort through rejected absentee ballots in preparation for a probable court action.

"Irregularities, if any, in the handling of those absentee ballots can be addressed through the election challenge process provided by law," said board member and Supreme Court Justice G. Barry Anderson, who made the motion to reject Franken's request.

Added Ramsey County Chief Judge Kathleen Gearin: "We do not have the authority to review rejected absentee ballots. That's the bottom line."

The Canvassing Board's one-hour deliberation came as local election officials continued recounting the 2.9 million U.S. Senate votes around Minnesota.

Unofficial returns released Wednesday night showed Republican U.S. Sen. Norm Coleman's lead over Democrat Franken at 292, which is up from 238 a night earlier. The lead was figured based ballots recounted and applied to Coleman's 215-vote margin before the recount started last week.

Local elections officials have recounted 86 percent of the ballots, with some counties not even starting to count until next week.

The secretary of state's figures show Coleman leads 1,044,255 to 1,040,285 in the raw vote so far in the recount, but 4,740 ballots challenged by one campaign or the other are not included in those vote totals.

Those mounting numbers of challenged ballots and more than 12,000 rejected absentee ballots are more than enough to decide the election.

Coleman picked up 66 votes Wednesday in Becker County alone. However, the final result is not clear because of the campaigns' ballot challenges. Becker County reported more than 150 challenges. That county completed its work Wednesday without the problems it suffered during the first two days of its recount. More than 100 ballots were reported misplaced or lost, drawing extra attention from each campaign.

Marc Elias, Franken's lead recount attorney, said the campaign would not appeal the state Canvassing Board's Wednesday decision and will wait until after the board meets again to determine its own next step.

About 288,000 Minnesotans voted absentee this year, a record, and Secretary of State Mark Ritchie estimated that between 12,000 and 13,000 of those were rejected. "We're talking about some significant numbers of ballots," said Ritchie, Canvassing Board chairman.

Board members agreed not to decide how rejected absentee ballots should be handled until a future meeting, likely next week. They are seeking the attorney general's advice about whether local election officials should sort rejected absentee ballots into five piles - four piles for ballots rejected properly under state law and a fifth for ballots rejected as a result of administrative error. Ritchie said the attorney general also is being asked what should be done with ballots in that fifth pile once they are sorted.

Fritz Knaak, Coleman's lead recount attorney, said the campaign expected the board would reject Franken's request, but has no problem with counties going back to review rejected absentee ballots. That already has happened in some cases, he said.

The number of improperly rejected ballots is "miniscule" and not enough to influence the outcome of the race, Knaak said, estimating the number of absentee ballots wrongly rejected to be one dozen.

Ritchie said that 500 to 1,000 rejected absentee votes may have been improperly rejected.

Elias said it was important that board members acknowledge the problem of rejected absentee ballots exists. Getting absentee ballots it believes were wrongly rejected included in the final tally has been a strategy of the Franken campaign.

"One thing is clear: There is a broad consensus among Minnesotans and among the Canvassing Board that there are real voters who have been improperly disenfranchised," Elias said.

In a separate issue, amid a growing number of ballots being challenged by each campaign, the Canvassing Board Wednesday urged the Franken and Coleman teams to withdraw some of their challenges, leaving only legitimate ones for the board to review beginning Dec. 16.

"The fewer challenges that I have to look at, the more carefully I'll be able to consider those that have merit," Supreme Court Chief Justice Eric Magnuson said.

Attorneys for each campaign said the number of challenges would be reduced before the board meets next month to consider those ballots, but it is not clear whether the campaigns will work together to trim the pile.

The campaigns are challenging ballots where the voters' intended candidate pick is not clear.

Elias said that in the end, all valid ballots will be counted - either by counties, by the Canvassing Board, in the courts or by the U.S. Senate. The Senate has the power to seat its own members, but races rarely are settled that way.

Senate Majority Leader Harry Reid, D-Nev., issued a statement Wednesday describing the Canvassing Board's action as "case for great concern."

"As the process moves forward, Minnesota authorities must ensure that no voter is disenfranchised," Reid said in the statement. "A citizen's right to have his or her vote counted is fundamental in our democracy."

The Detroit Lakes Newspapers contributed to this story.

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