Minn. Senate race end pushed even further out

updated 9:34 a.m. ET Jan. 7, 2009

ST. PAUL, Minn. - Minnesota's grueling U.S. Senate race, already dragging on two months past Election Day, has now moved even further from the voters — and into the hands of lawyers.

Republican Norm Coleman filed a lawsuit Tuesday challenging Democrat Al Franken's apparent recount victory, likely keeping one of Minnesota's two U.S. Senate seats unoccupied for weeks or even months.

It promises to reopen many of the disputes that arose during the recount, and to raise new questions about the conduct of the election and the counting of ballots.

Coleman acknowledged a desire among some Minnesotans to move on, but said a larger principle than expediency is at stake.

"We are filing this contest to make absolutely sure every valid vote was counted and no one's was counted more than anyone else's," he said at a Capitol news conference filled with cheering supporters.

"Democracy is not a machine," Coleman said. "Sometimes it's messy and inconvenient, and reaching the best conclusion is never quick because speed is not the first objective, fairness is."

The lawsuit followed a state board's determination a day earlier that Franken captured 225 more votes in the November election. But state law prevents officials from issuing an election certificate until legal matters are resolved. Franken did not participate Tuesday when new U.S. senators took the oath of office in Washington.

Coleman attorney Fritz Knaak estimated the lawsuit could take at least two months to resolve.

Franken attorney Marc Elias called the lawsuit "essentially the same thin gruel, warmed-over leftovers from meals we've all been served over the last few weeks."

Video Franken: 'I'm ready to get to work' Jan. 5: Saying "this victory is incredibly humbling," Democrat Al Franken declares victory after winning a recount over incumbent Republican Norm Coleman for Minnesota's disputed senate seat. MSNBC

He said Coleman has the right to sue, but that doesn't mean his claims have merit, and he was confident Franken would prevail.

Elias refused to say whether the campaign believes the former "Saturday Night Live" personality should be seated while the election challenge is pending.

Franken e-mailed supporters Tuesday seeking donations to carry on the legal fight, just as Coleman did a day earlier.

Coleman, whose term expired Saturday, led Franken by 215 votes in the Nov. 4 count but that advantage flipped during a prolonged recount.

The critical task of picking a three-judge panel to hear the lawsuit won't be made by the Supreme Court's chief justice, Eric Magnuson, according to a court spokesman. Magnuson is delegating the decision to Justice Alan Page, who has the most seniority. Magnuson didn't give a reason for his recusal, but he served on the state board that determined Franken got more votes than Coleman.

Page has been on the court since his 1992 election in a nonpartisan race. He has been mentioned before as a possible Democratic candidate for political office.

A trial is supposed to commence within three weeks of the case being filed.

In going to court, Coleman has three big challenges: raising money to pay escalating legal bills, proving the election was flawed and managing the public's desire to have the race over.

Video Senate doors stay closed to Burris, Franken Jan. 6: Controversy gave way to ceremony Tuesday as the new Congress was sworn in without Illinois' appointed Senator Roland Burris or winner of the Minnesota recount Al Franken. NBC's Kelly O'Donnell reports. Nightly News

"They definitely have an uphill fight on their hands," said Guy-Uriel Charles, a professor of election and constitutional law at the University of Minnesota. "Their legal theory will have to overcome a burden of proof, and then they have to find enough votes to overcome Franken's lead."

That could prove difficult, since any bloc of new votes would almost surely include some for Franken.

A lawsuit gives both sides options they lacked during the recount, such as accessing voter rolls, inspecting machines and introducing testimony from election workers.

Coleman's filing includes some of the points his lawyers have been making for weeks. It centers mainly around claims that hundreds of rejected absentee ballots from Republican-leaning areas should have been part of the recount, that some ballots in Democratic territory were counted twice and that election officials were wrong to use machine tallies for a Minneapolis precinct where ballots went missing.

But there are new angles, too.

The lawsuit alleges that the Canvassing Board made mistakes when determining voter intent on challenged ballots, that ineligible voters cast ballots and that some absentee ballots were erroneously opened early, raising chain-of-custody concerns.

Chief Justice Eric Magnuson of the Minnesota Supreme Court, an appointee of Republican Gov. Tim Pawlenty, is charged with selecting a three-judge panel to hear the case. A trial is supposed to commence within three weeks of Magnuson appointing the panel.

Coleman was asked at his news conference if he was certain he'd win his legal challenge.

"I can't say I'm 100 percent confident," he said. "I don't know what the outcome will be. It was a lot closer than I thought it would be."

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