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Court considers disputed ballots

State Supreme Court Justice G. Barry Anderson, a Minnesota Canvassing Board member, reviews a ballot challenged by Al Franken during the U.S. Senate recount. Anderson and the five-member board reviewed ballots at a faster pace Wednesday. Staff photo by Scott Wente

ST. PAUL - Minnesota's top elections board and its high court are considering what entity will decide the fate of the U.S. Senate race.

Republican Sen. Norm Coleman's campaign wants the courts to decide whether a category of disputed ballots should be counted. Democratic challenger Al Franken's campaign argues that the state Canvassing Board should count the ballots.

A Coleman attorney warned the Supreme Court on Wednesday that counting hundreds of disputed absentee ballots without strict rules could turn Minnesota into Florida, at least in terms of election recounts.

After making that argument to justices, Coleman attorney Roger Magnuson said that he wants to make sure the recount "does not walk us into the slough of Florida."

Justice Paul Anderson did not like the comparison.

"This is not Florida," Anderson told Magnuson. "I am not very receptive to comparing this to Florida."

The Supreme Court hearing and a simultaneous state Canvassing Board meeting dealt with similar issues Wednesday - how much authority the board has in deciding how to count - or even whether to count - disputed ballots.

The dual hearings are an extension of a recount of 2.9 million ballots in the U.S. Senate race, which ended with Coleman leading by about 200 votes.

That tally showing Coleman leading Franken heading into this week's activities means little. There could be more than 6,000 ballots that either have not been added to the tally or await a decision on how they will be handled.

At least three categories of votes remain controversial:

-- Up to 1,500 ballots the two candidates said during the recount that voters' intent could not be determined. The five-member Canvassing Board is examining those ballots one by one.

-- A like number of absentee ballots may have been improperly rejected. The court is considering whether the Canvassing Board can count them, or whether the courts need to decide the issue.

-- An unknown number of other ballots being disputed for a variety of other reasons. Including in this category would be a few hundred votes that the Coleman campaign says were counted twice.

There are more than enough disputed ballots to decide the election winner. Canvassing Board members and Supreme Court justices appeared to agree the final decision will be made in the courts.

Franken attorney Bill Pentelovitch said his campaign has an over-riding desire: "Every vote properly cast should be counted."

The question centers on who will decide what votes will be counted.

Some justices suggested that the Franken and Coleman campaigns get together and agree on what absentee ballots should be counted. However, Magnuson wanted the dispute handled in court.

Magnuson specifically asked the high court to bar the Canvassing Board from counting absentee ballots that elections officials improperly rejected. Short of that, Magnuson told justices that specific rules should be established so all 87 counties are making the same decisions.

"The devil is in the details," he said.

There was no indication when the court will decide the Coleman case.

While many in the process said the courts eventually will decide, Anderson said he was not happy that individual voters should be forced into court to make sure their votes count.

"It just doesn't seem right to me," he said.

At the same time justices were considering the Coleman case, the Canvassing Board - the body charged with the duty to certify the election's winner - was being asked to consider ballots that may have been counted twice.

The board planned to decide that issue today. However, one of the board members, Chief Justice Eric Magnuson, said the Canvassing Board is not the right place for that decision. "We have a very narrow function here."

He hinted that decision should be made in the courts: "It is not that you are without a remedy at that point. It is just not here."

The chief justice and fellow Justice G. Barry Anderson serve on the Canvassing Board, so did not take part in the separate high court hearing about the absentee ballots.

The Canvassing Board plowed through the stack of ballots challenged by Franken, completing the campaign's roughly 420 challenges.

Canvassing Board members applauded the Franken campaign for withdrawing about 80 challenges and urged Coleman attorneys to pull some of their roughly 1,000 challenges when those are reviewed beginning today.

Secretary of State Mark Ritchie said the board will complete the ballot-challenge review Friday.