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Don Davis, Published June 01 2009

SENATE TRIAL UPDATE: Coleman says smaller counties skipped counting ballots

ST. PAUL – If all Minnesota elections officials followed the lead of the state's largest counties – such as St. Louis, Hennepin and Ramsey – thousands more absentee ballots would have been counted in last November's U.S. Senate election, Norm Coleman's attorney told state Supreme Court justices this morning.

The fast-paced, 70-minute hearing featured Coleman and Al Franken attorneys fielding questions from five high court justices about a district court panel's decision to not count thousands of absentee ballots elections officials rejected for a multitude of reasons. Justices could make a decision within weeks, but gave no indication when they would rule.

The hearing came after Coleman lost his district court case, claiming that many more ballots should have been counted.

Coleman attorney Joe Friedberg told the justices that many larger counties properly followed the law, counting more absentee votes than did smaller counties.

"We have significant disenfranchisement," Friedberg said.

Had all counties got it right, he added, thousands more votes would have counted.

After 2.9 million Minnesotans went to the polls last Nov. 4, after a statewide recount and after a lengthy district court trial, Democrat Franken leads Republican Coleman by 312 votes.

Franken Attorney Marc Elias, a nationally prominent Democratic elections-law attorney, sounded confident after the hearing.

Neither side would comment on anything beyond the high court hearing, but it is widely believed the Coleman camp is considering going to the federal courts if the state court rules against him.

The issue is of national interest because Democrats and their independent allies hold 59 votes in the Senate. If they get one more, which they think will be Franken, they can avoid Republican filibusters and other parliamentary maneuvers that can delay or kill Democratic initiatives, including those by President Barack Obama.

After quietly sitting through the hearing, Coleman said he wants all properly cast Minnesota ballots to count.

The five justices – two did not take part in the hearing because they served on a canvassing board governing the recount – fired tough questions at both sides.

"I don't think you can read anything into the questions asked by the court," Elias said.

One of the major questions was asked by Justice Alan Page, who wondered if voters who cast 12,000 rejected absentee ballots did so legally.

Friedberg responded: "They did substantially."

The justices are expected to either order the district court to take up the case again, accepting more ballots, or to reject Coleman's appeal. If Coleman loses, the question becomes whether Republican Gov. Tim Pawlenty and Democratic Secretary of State Mark Ritchie then sign an election certificate, sending Franken to the Senate.

Regardless of what Ritchie and Pawlenty do, senators themselves have the final say in who they seat.

For further updates, check back to www.inforum.com and read Tuesday's Forum

Davis works for Forum Communications Co., which owns The Forum. He can be reached at (651) 290-0707 or ddavis@forumcomm.com