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Franken leads; ballots remain

Secretary of State Mark Ritchie leans in to look at a ballot with Supreme Court Justice G. Barry Anderson Friday while they and the state Canvassing Board's three other members consider ballots challenged during the U.S. Senate recount. Staff photo by Scott Wente

ST. PAUL - A new leader emerged Friday in Minnesota's U.S. Senate race, but new electoral wrinkles kept the outcome unknown.

Democrat Al Franken pulled ahead of Sen. Norm Coleman for the first time after the state Canvassing Board completed a four-day review of roughly 1,500 ballots challenged by the campaigns during the statewide recount.

The board's exhaustive review - it eyed challenged ballots for voter intent - gave Franken a lead of around 260 votes out of 2.9 million ballots cast. That is based on analyses from media outlets tracking the race and represents a flip from when Coleman went into the recount leading Franken by more than 200 votes.

"There is absolutely not doubt at this juncture that Al Franken has received more votes than Norm Coleman," Franken attorney Marc Elias said, adding the Canvassing Board's action is "only the next step in the process."

Coleman attorney Fritz Knaak said the running tally will fluctuate and that Franken's apparent lead "is a wisp in the wind." The Coleman campaign was equally confident the Republican senator will win a second term.

Franken's lead may not last as thousands of other ballots still must be folded into the total. And at least two other categories of controversial votes are unsettled after Coleman's campaign went to the Supreme Court Friday for a second time over disputed ballots.

The campaign asked the high court to prevent the counting of what it said are votes tallied twice during the recount. It claims more than 100 of the estimated 150 double-counted votes are from Minneapolis, a Democratic stronghold.

The Supreme Court scheduled a hearing Tuesday to consider the issue.

The Coleman campaign said double counting occurred when local officials on election night made duplicates of ballots that were damaged and could be recorded. The originals and duplicates are supposed to be attached, but that did not happen in some cases, leading to a double count during the hand recount. It challenged those ballots before the Canvassing Board.

While Canvassing Board members expressed concern votes may have been counted twice, they said state law does not give them the authority to consider that issue.

"Procedurally, I think this is not the forum for making a factual determination about what happened to these originals and duplicates," Supreme Court Justice G. Barry Anderson said. "That's going to have to be done elsewhere."

Anderson and Supreme Court Chief Justice Eric Magnuson are not taking part in Senate race lawsuits before the Supreme Court because they serve on the Canvassing Board.

The Franken camp called the Supreme Court filing a "desperate" act by a campaign that now realizes it will lose the race, so must find new ways to challenge the vote total.

"It's quite desperate on their part," Coleman attorney Tony Trimble said of the Franken campaign's response to the double-counting issue. "They're looking to pick up 130 votes that don't exist."

Besides the 1,500 ballots Canvassing Board members reviewed, another 5,000 previously withdrawn challenges still must be included in the secretary of state's tally. That should be completed before the Canvassing Board meets again Monday or Tuesday.

Also, an estimated 1,500 improperly rejected absentee ballots remain to be counted. The Supreme Court ordered the campaigns, the secretary of state's office and local election officials to agree on improperly rejected absentee ballots by Dec. 31.

"We're down to some important but relatively small - in a numerical sense - side issues," Secretary of State Mark Ritchie said.

The unresolved ballot issues make it highly unlikely the Canvassing Board can certify final election results before the end of the year. It also remains unclear whether the race will be settled before the new Congress is sworn in Jan. 6.

Gov. Tim Pawlenty said Friday his legal staff has preliminarily studied whether he would then appoint an interim senator, but the Republican governor said he is optimistic Minnesota's next elected senator will be named before Jan. 6.