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By Brian Bakst, Associated Press Writer, Published May 01 2009

Coleman to Minnesota Supreme Court: Count more votes

ST. PAUL – Former Republican Sen. Norm Coleman asked Minnesota’s highest court to order the counting of at least 1,359 additional ballots and possibly thousands more in his Senate race or go so far as to throw out the election entirely.

Coleman filed his Supreme Court brief Thursday as he seeks to overcome Democrat Al Franken’s 312-vote lead after a recount and trial. The brief has five areas of appeal but focuses most heavily on uncounted absentee ballots.

A Franken win would give Democrats and aligned independents a 60th vote, enough to overcome Republican filibusters.

As they argued throughout a seven-week trial, Coleman’s lawyers said counties didn’t follow the same standard for determining which absentee ballots to accept and reject. Those include the procedures for verifying whether required witnesses were qualified.

The brief said the “overwhelming evidence of disparate treatment cannot be ignored – no matter how expedient it may be to do precisely that.”

Coleman’s hope is that more ballots from heavily Republican areas make it into the count. The trial court agreed to let 351 ballots in, but more of those went to Franken than to Coleman.

Justices will hear the case June 1, but there is no deadline for a decision. The loser could attempt to take the case to the U.S. Supreme Court or ask the Senate itself to step in.

Franken has until mid-May to file his brief and then Coleman has more time to respond to that. A Franken spokesman said there was no plan to comment now on the Coleman brief.

In his initial brief, Coleman offers a range of options the court could consider, from reducing each man’s total in places where absentee votes were improperly allowed to throwing out the entire election.

“Minnesota law may not authorize this Court to require a new election, but neither does it require the Court to certify a winner if the record does not admit of one,” his lawyers wrote.

Coleman lawyer Ben Ginsberg told reporters that that wasn’t the preferred outcome.

Instead, the brief said justices can “avoid that Hobson’s choice” by including other ballots through a more lenient standard than the trial court relied on.

“Time and time again, Minnesota courts have stopped short of a literal application of election laws in order to enfranchise voters,” the brief said.

Coleman also wants the court to revisit what he has described as counting irregularities that pumped up Franken’s vote totals in Minneapolis during the recount.

Five of the state’s seven justices will hear the case. The two others plan to recuse themselves after serving on the election board that oversaw the statewide recount.

Meanwhile, a left-leaning group known as Americans United for Change began airing television ads on cable stations urging Gov. Tim Pawlenty to issue an election certificate once the state high court rules. Pawlenty has said he will await direction from the court but hasn’t ruled out withholding the certificate pending federal litigation.