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ST. PAUL, Minn. (AP) - Thursday may be a critical day in the ongoing Minnesota Senate recount trial.
Attorneys for Norm Coleman and Al Franken will argue before a three-judge panel which categories of absentee ballots should be rejected.
Wednesday, after several weeks of testimony that identified a myriad of reasons why certain absentee ballots were rejected, the trial's three-judge panel established categories for 19 reasons why ballots were rejected. Then they asked Coleman and Franken to argue for admitting or excluding entire categories instead of taking ballots one by one - a method that threatened to take weeks.
But the two sides came back from that assignment with very different results.
Franken's lawyers argued that ballots in 17 of the 19 categories should not be counted. In two categories, they say some of the ballots should be counted only if they meet certain requirements.
Coleman's lawyers said ballots from only three of the categories should be disqualified entirely, and that all of the ballots in most of the other categories should be counted.
The judges themselves will decide whether the categories constitute valid reasons for rejection; the lawyers will argue the categories before the judges on Thursday afternoon.
The 19 categories laid out by the judges are very specific. Previously, the judges said they would count rejected ballots if they fell into one of two broad categories: those where it appeared the voter had met the legal requirements of voting absentee but got rejected anyway, and those where they might have run afoul of the law because of mistakes by election officials.
But now they're asking whether specific reasons for rejecting ballots meet one of those two categories. For instance: "An absentee ballot returned by a non-registered voter in an absentee ballot return envelope on which no box in the proof of residence portion of the absentee ballot return envelope is checked by the witness."
In that case, Franken said such ballots should not be counted while Coleman said they should. The overriding theme of Coleman's argument for counting most of the categories is that most mistakes made by absentee voters should not strike their ballots if the mistake was minor and not made in bad faith.
They found only three types of errors that should be used to exclude absentees: in cases where a rejected absentee can't prove they didn't vote on Election Day; when the ballot was delivered to the polling place after the legal deadline of 3 p.m. on Election Day; or the ballot came from an unregistered voter who made no effort to register before voting.
But Franken's lawyers argued that Minnesota law, in fact, sets clear and definite guidelines for rejecting absentee ballots - and that most of the errors laid out in the 19 categories break those guidelines.
"It is ironic that Contestant Coleman, who previously insisted on strict laws against voter fraud ... now finds it in his interest to ask for judicial activism in the cause of forgiving compliance with reasonable requirements of Minnesota law," Franken's lawyers wrote in their brief.
Franken's lawyers saw only two types of rejected ballots they think should be counted. They said ballots where there is a suspicion that voter registration materials are contained inside the ballot's secrecy envelope itself should be opened, and counted only if the registration material is enclosed.
Franken also said ballots that were rejected because the date of the voter's signature differs from the date of their witness's signature should be accepted and counted.
Whatever the judges rule on the 19 categories, it's likely to set a narrower path going forward in the trial. Coleman attorney Ben Ginsberg said if the judges strike some of the categories, it would quickly reduce the number of ballots on which Coleman is presenting evidence.
(Copyright 2009 by The Associated Press. All Rights Reserved.)
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