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Coleman team: Judges created 'fatal flaw'

ST. PAUL - Norm Coleman's legal team said judges created a "fatal flaw," claiming the jurists are making contradictory decisions in Minnesota's U.S. Senate election trial.

In its sharpest criticism since the trial started four weeks ago, Coleman's campaign said Wednesday that the three-judge panel made inconsistent rulings that, unless resolved, leave it impossible to determine an accurate vote total.

"The court has stepped into some legal quicksand," said Ben Ginsberg, an attorney for the former Republican senator.

An attorney for Democrat Al Franken said Coleman is preparing for an appeal if he loses the trial, which is expected to last at least several more weeks. An appeal would further prolong the unresolved election.

Coleman is challenging Senate election recount results that showed Franken won by 225 votes.

The criticism came after the judges - Kurt Marben of Pennington County, Elizabeth Hayden of Stearns County and Denise Reilly of Hennepin County - said they will not rethink a Friday ruling that blocked some rejected absentee ballots from being considered for counting.

The judges said those ballots were not legally cast under state law, so cannot be counted.

Coleman's campaign said that decision contradicts earlier action. Ginsberg said the judges, earlier in the trial, approved of just over 100 ballots that would be deemed illegally cast under the court's recent decision.

"It is a fatal flaw that the judges yet need to correct," he said, adding that perhaps "thousands" of ballots included in the Election Day tally also would be considered illegally cast under the court's recent ruling.

The campaign also said trial testimony from county officials continues to show election judges in different counties applied different standards when reviewing similar absentee ballots.

That is a widespread problem, Ginsberg said.

Franken attorney Marc Elias said a U.S. Senate panel, not a state court, would be the proper venue for Coleman to argue that the election was plagued by "systemic" problems. However, Elias added, the judges so far have suggested there were no widespread problems in the election.

Coleman's campaign simply is building its argument for future legal action, Elias said. That could happen at the state or federal level.

"We are interested in this court proceeding right now and we hope that the judges will cure this fatal inconsistency," Ginsberg said.

Inside the courtroom, attorneys continued questioning county officials on the trial's 18th day. Testimony from officials in Scott, Stearns and Olmsted counties suggested those counties used different practices when considering certain absentee ballot documents.

"One of the consequences of having local election officials run elections as we do is that there are going to be some mistakes that happen and some variances between precincts and between counties," Elias said.