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U.S. Senate election trial judges Denise Riley, from left, Elizabeth Hayden and Kurt Marben talk with attorneys for Norm Coleman and Al Franken during the trial Monday. Pool photo by John Doman, Pioneer Press

Coleman nears end of case

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ST. PAUL - Al Franken's campaign wants to remove a pile of northwestern Minnesota ballots from the U.S. Senate election tally as Norm Coleman's team nears the end of its court case.

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The Democrat's campaign said 61 Becker County ballots should be removed from the election tally because local officials did not follow state law about ballot documentation and storage. New evidence was found in recent weeks indicating the votes, which favored Coleman, should not have been counted, Franken's campaign said Monday.

That is among arguments Franken attorneys will make in their case before the three-judge panel presiding over the election trial, which is in its fifth week. Coleman is trying to overturn the recount results that gave Franken a 225-vote victory.

Coleman's campaign could wrap up its case by the end of the week, attorney Ben Ginsberg said. Coleman attorneys are trying to convince the judges to consider opening and counting at least 2,000 uncounted absentee ballots. The campaign only plans to call a few more local election officials to testify, mostly from the Twin Cities, and it likely is done calling voters as witnesses, Ginsberg said.

Franken's campaign raised the Becker County issue in a recent legal filing, though it said it already objected to counting the ballots.

The 61 ballots mostly came from mail-in precincts. County officials received the ballots by election night, but workers placed them in an unsealed box and left the box in the auditor's office instead of moving it to a nearby county election center, said Ryan Tangen, the county's auditor-treasurer. The ballots were found later in the week and moved to a secure room until the recount, when they were counted for the first time.

Franken's campaign claims they should not be counted because "there was no evidence to establish an appropriate chain of custody" between election night and when they were located later that week. Coleman gained at least 19 more votes from that group than did Franken.

"This is an unusual situation," Franken attorney David Lillehaug said Monday. "These ballots were simply in a box."

The trial's 21st day Monday included testimony from Gary Poser, the state's election director and the chief recount official. Poser, a former Washington County election supervisor, fielded questions about state voter registration issues. He also was asked about a policy created during the recount to handle damaged ballots that could not be read by voting machines.

Coleman's campaign has alleged vote total irregularities occurred in the recount when some of those original ballots were counted along with the duplicates.

Franken's campaign said the Coleman team agreed to the policy.

The Franken campaign learned more about the Becker County issue recently after receiving sworn statements from Tangen and Becker County official Renee Zok, Lillehaug said. He refused to say whether the campaign is alleging that the ballots were tampered with between election night and when they were found.

"That's an issue where the evidence will come out in trial," he said.

In an interview, Tangen said the ballots were in sealed envelopes and he does not believe any were removed from the box. They were included in the recount at the advice of the state attorney general because they were received before an election night deadline, he said.

"I don't feel that they were tampered with," Tangen said.

Ginsberg said the Coleman campaign was not aware of new evidence about the Becker County ballots beyond what was included in Franken's filing. However, Ginsberg added, if Franken's campaign is going to object to the Becker County ballots, it also should object to the inclusion of 133 votes from a Minneapolis precinct even though the ballots have not been found.

Becker County voters favored Coleman in the Nov. 4 election.

"I don't expect Norm Coleman to be complaining about the way the ballots were stored, but we are," Lillehaug said.

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