Minn. board refuses voided absentee ballots

updated 12:42 p.m. ET Nov. 26, 2008

ST. PAUL, Minn. - In a blow to Democrat Al Franken, a state board ruled Wednesday that absentee ballots that were rejected by poll workers won't be included in Minnesota's Senate recount.

The five-member state Canvassing Board denied a request by Franken's campaign to reconsider absentee ballots it claims were excluded from the initial vote count because of technicalities or administrative errors. Republican Sen. Norm Coleman's campaign maintained the board lacked power to revisit those ballots.

Statewide, Secretary of State Mark Ritchie estimated about 12,000 absentee ballots were rejected for various reasons -- some legitimate, some not. That represents between 4 percent and 5 percent of all the absentee ballots cast in the election.

Franken entered the recount trailing Coleman by 215 votes out of 2.9 million ballots. About 80 percent have been recounted and Coleman has maintained a lead throughout. However, there are about 3,600 ballots the two campaigns have challenged that could fall to the board to rule on.

Franken's campaign had made the push to factor in rejected absentee ballots a key link of its recount strategy, even going to court to force county officials to turn over data on voters whose ballots didn't count.

The board's voice vote, with no audible dissent, followed a discussion where some members expressed frustration over the possibility that some ballots were disqualified improperly. But even they acknowledged the matter fell outside the board's duties. Two Supreme Court justices, two district judges and the secretary of state make up the board.

"We're not in a courtroom and we need to keep that in mind," said Ramsey County District Judge Edward Cleary.

Supreme Court Justice G. Barry Anderson made the motion to deny the Franken request on grounds that such a review would have to wait for a court challenge that is likely to follow the recount. The loser can file what is known as an election contest.

"Irregularities, if any, in the handling of those absentee ballots can be addressed in the election contest process provided by law."

The board gave Franken a glimmer of hope after voting his motion down. Members agreed to seek legal advice and meet again soon to decide whether local election officials should sort through the rejected ballots. That would help determine whether any that were actually accepted didn't get counted and whether any rejections fell outside the rules for disqualification. But the board didn't answer what would happen with those ballots.

Also Wednesday, the panel strongly encouraged the two campaigns to voluntarily whittle down the challenge pile. The tit-for-tat challenging has escalated by the day, including some challenges where voter intent is obvious and no other ballot deficiencies are apparent.

"The fewer challenges I have to look at the more carefully I'll be able to look at those that have merit," said Chief Justice Eric Magnuson. "We want to decide all the legitimate challenges. But we don't want to spend time that we don't have looking at things we don't need to look at."

The Coleman campaign had issued more challenges as of Tuesday, but legal counsel Fritz Knaak indicated openness to dialing back on the challenges -- as long as the Franken campaign vowed to do likewise.

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