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Ballot decision prompts Supreme Court request

State Canvassing Board members G. Barry Anderson, left, a Supreme Court justice, and Edward Cleary, a Ramsey County district judge, listen to a discussion Friday of rejected absentee ballots in Minnesota's U.S. Senate race. Staff photo by Scott Wente.

ST. PAUL -- Al Franken's campaign celebrated the election board's request that a controversial pile of ballots be counted.

Norm Coleman's attorneys sought the state Supreme Court's swift intervention to avoid a "Florida-style" ballot mishap.

And the state's election chief reminded everyone Minnesota's U.S. Senate race will not be decided for at least another week.

Those actions followed the state Canvassing Board's request Friday that counties sort rejected absentee ballots and count any they believe were improperly rejected.

Canvassing Board members - Secretary of State Mark Ritchie, two Supreme Court justices and two district court judges - said they do not have authority to order counties to count wrongly rejected absentee ballots, but said they want errors corrected and Minnesotans want lawful votes counted.

"The idea here is to count ballots that were properly cast," said board member and Supreme Court Chief Justice Eric Magnuson. "The election officials are making a good-faith effort to go back, figure out where they may have missed the boat and fix it."

The board's decision was a victory for Democrat Franken, whose campaign argued for weeks that those ballots ought to be counted. Results from the requested count could tip the race; data from the secretary of state's office shows Coleman leading Franken by 192 votes after the 2.9-million-ballot recount.

Franken lead recount attorney Marc Elias said the board's decision was a "profoundly important step in affirming that there is a problem" with improperly rejected absentee ballots.

Some counties already have sorted their rejected absentee ballots into piles for the four reasons those ballots can lawfully be rejected and a so-called "fifth pile" of absentee ballots believed rejected for improper reasons, such as administrative errors. Others appear reluctant to act on the board's request.

Deputy Secretary of State Jim Gelbmann said there could be 1,500 improperly rejected absentee ballots statewide, or about 13 percent of all rejected absentee ballots.

Following the Canvassing Board's request, Coleman's campaign asked counties to not count any of those votes until the Supreme Court establishes a uniform procedure for sorting those ballots.

The campaign said Friday afternoon it would petition the Supreme Court, hoping for court action by early next week. Coleman recount attorney Tony Trimble said the campaign is trying "to avoid a Florida-style situation where we have ballots treated differently in one county as to another county."

Franken's campaign said it was an attempt to block the votes from being counted.

A separate decision also went in Franken's favor. The Canvassing Board voted to allow Minneapolis to include in its recount total election-night results recorded by a ballot machine in a precinct where 133 votes were declared missing during the recount. An extensive search did not turn up an envelope city officials said contained the ballots.

"No system is perfect," said Magnuson, a Supreme Court appointee of Republican Gov. Tim Pawlenty. "I believe that officials here have acted in the best interests of the public in preserving the records and conducting their search."

Also Friday, Canvassing Board members delivered their strongest statements yet that the campaigns should withdraw more ballot challenges.

The campaigns challenged 6,655 ballots during the recount. Each side has withdrawn some of its challenges, but the secretary of state's office said more than 4,400 ballot challenges remain. The board is scheduled to meet for up to four days beginning Tuesday to review ballot challenges, which cloud the status of the race because they have not yet been counted.

"I just hope that both sides are respecting every single ballot that they see and raising only challenges to these ballots that are serious," Ramsey County Chief Judge Kathleen Gearin said. "Please, please be serious."

Ritchie, the Democratic secretary of state, said he wants all ballot challenges reviewed and the election outcome determined by Dec. 19, but acknowledged it may take longer and lawsuits are possible.

"Absolutely no one can tell or predict who will have the most votes from Minnesota voters from Nov. 4 until this process is completed," he said.