Disputed Senate ballots hold key to Minn. win

updated 12:56 p.m. ET Nov. 21, 2008

MINNEAPOLIS - A recount watchdog for Norm Coleman flagged a ballot because the voter put a check next to Al Franken's name instead of blacking in the oval. A Franken monitor challenged an apparent vote for Coleman because Franken's name was also marked. And representatives of both men invoked challenges because of marks elsewhere on the ballot that could make them identifiable.

The pile of disputed ballots in Minnesota's U.S. Senate race is growing at a pace sure to dwarf the 215-vote margin prior to the recount, making it tough to tell whether Coleman, the Republican incumbent, or Franken, his Democratic challenger, is gaining an edge as the recount progresses.

After two days of counting, results reported Thursday to the secretary of state showed Coleman's advantage over Franken fading. Compared with pre-recount figures, Franken trails Coleman by 129 votes.

Still, there are almost 60 percent of ballots outstanding as part of the 2.9 million ballots being reviewed. Thirty-five of Minnesota's 87 counties told the state they had finished their counts.

As of Thursday, both candidates had lost votes in numerous counties because of challenged ballots. If that continues, it will likely mean a cliffhanger until the state canvassing board meets beginning Dec. 16 to rule on challenged ballots.

"My guess is the outcome will be determined by the challenged ballots," Deputy Secretary of State Jim Gelbmann said as the recount entered its second day. "The difference between the two candidates at the end of this process will be less than the total number of challenged ballots."

Through two days, the reported total of challenges hit 734 between the two. Franken has challenged slightly more than Coleman. More than a third of the challenges came in two counties regarded as Democratic strongholds — Hennepin and St. Louis.

Whether most of those challenges are upheld by the canvassing board is a separate matter. Several county auditors said most they saw were questionable at best.

"In my mind — I can only say in my mind — it was pretty obvious what the voter's intent was with almost all of the ballots they challenged," said Sam Modderman, the auditor in Kandiyohi County, where Coleman lost four votes and Franken held even.

Pipestone County Auditor Joyce Steinhoff said she saw several challenges she thought were frivolous, but she decided not to push back too hard. "I'd rather have it overruled by the canvassing board, then have them say I deprived them of their right to challenge," she said.

In Pipestone, which started and finished its recount Wednesday, Franken lost 10 votes and Coleman lost 5.

County officials have the power to question challenges they consider frivolous, but Gelbmann said the secretary of state's office has directed them to give monitors wide latitude to insist such ballots get sent to the canvassing board anyway.

Lawyers from both campaigns said Thursday it was too early to assess the significance of the challenge pile. Both questioned whether the other had gone too far in some cases.

"We have seen examples of challenges that clearly are non-meritorious and will not be upheld by the canvassing board. Where that winds up going, we'll see," said Franken's legal chief, Marc Elias. "Maybe the Coleman campaign was a little overexuberant on Day One."

Coleman's top lawyer, Fritz Knaak, said he expected the number of challenges to be greater. Still, he's on the lookout for "no-brainer Coleman votes" that are winding up in the disputed stack.

"We see some of their challenges and shrug and say `Where did that come from?'" Knaak said.

The campaigns get copies of the challenged ballots and they can lift their hold on a ballot being counted if they have second thoughts.

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