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Senate recount gets weirder -- state supreme court gives political campaigns a say in which absentee ballots are counted by local election boards

Court orders campaigns, officials to decide absentees

ST. PAUL - The Minnesota Supreme Court told Minnesota's two U.S. Senate campaigns and elections officials to decide what disputed absentee ballots should be counted in a Thursday order giving neither candidate all he wanted.

A split court partially agreed with U.S. Sen. Norm Coleman, whose campaign sought to ban counting absentee ballots that local officials rejected until specific guidelines were established. The justices said local and state election canvassing boards cannot open and count any rejected absentee ballots unless the Coleman and Al Franken campaigns agree with local and state elections officials. Franken and Coleman have been at odds over the absentee ballots for weeks.

Three justices ruled that state law does not give state and local canvassing boards authority to count the rejected ballots on their own.

Two justices sitting on the state Canvassing Board did not participate in the case.

The ruling sets a 4 p.m. Dec. 31 deadline for local elections officials and the campaigns to agree on what ballots to recount. That means the state Canvassing Board cannot certify a Senate race winner before then.

"Although we recognize the extraordinary efforts of local election officials already expended related to this election and are loath to impose additional burdens, particularly at this time of year, the compelling need to move toward a conclusion requires the imposition of a deadline for completion of the process," justices Helen Meyer, Lorie Gildea and Christopher Dietzen wrote.

The question arose when state officials discovered that an estimated 1,500 absentee ballots were improperly rejected. With a Senate race separated by a couple hundred votes after a statewide recount, that is more than enough to sway the election outcome.

State law specifies why an absentee ballot may be rejected, such as the voter not being registered, but officials say there may have been 1,500 ballots rejected for reasons other than spelled out in the law.

Franken and Coleman officials both claimed victory in the ruling.

"Today, the Supreme Court joined the ranks of the state's top elections official, the state's top law enforcement officer and the state Canvassing Board in acknowledging that Minnesotans were wrongly disenfranchised by the improper rejection of their absentee ballots, and that those ballots must be included in the count," Franken attorney Marc Elias said Thursday night.

Coleman recount attorney Tony Trimble said the Supreme Court ordered a procedure, which the campaign had requested in its lawsuit, so the campaign will abide by that procedure.

Secretary of State Mark Ritchie said local election officials are tired but will "focus and make this happen."

Some counties reported few, if any, improperly rejected absentee ballots, so following the Supreme Court order should not take long, Ritchie said.

"This is not the same as reviewing 3 million ballots," he said, which is what local official finished earlier this month.

Justice Alan Page dissented in the court ruling. He said the court order will disenfranchise voters because not all ballots will be counted.

"The court's ruling denied county canvassing boards, which have reached the decision that an absentee ballot was rejected in obvious error, the ability to correct those errors unless the candidates agree," Page wrote.

Page questioned whether the candidates can agree on what ballots should be counted, and he said the ruling gives the campaigns improper power to decide whose votes are counted.

Justice Paul Anderson partially disagreed with the court majority's ruling. He said the three justices voting in the majority misread state law, which he said should allow county canvassing boards authority to count improperly discarded ballots.

The decision, he added, "has essentially inserted this court into a political thicket based on a premise that lacks a basis under the law."

State Capitol reporter Scott Wente contributed to this story.