ST. PAUL, Minn. - Minnesota's highest court on Wednesday ruled against Republican Sen. Norm Coleman's attempt to keep dozens of possible double votes from Democratic-heavy precincts out of the long-running U.S. Senate recount, but left the door open for a lawsuit.
Coleman's attorneys said the decision virtually guarantees that the recount will end in litigation, delaying the seating of a Minnesota senator well past Jan. 6, when the next Congress convenes.
Coleman currently trails Democrat Al Franken by 47 votes, but the race could still hinge on corrections to the State Canvassing Board's official report and as many as 1,600 improperly rejected absentee ballots that have yet to be counted.
"This is close enough so that inevitably as a result of this decision either party is going to be filing a lawsuit," said Fritz Knaak, Coleman's lead recount attorney.
In a 5-0 vote, the state Supreme Court denied Coleman's request for a temporary restraining order to block so-called duplicates, upholding the State Canvassing Board's ruling on the matter. The Coleman campaign had contended some duplicated ballots were counted twice, favoring Democrat Al Franken.
The court's decision leaves Coleman with fewer ways to make up ground in the recount. But Associate Justice Alan Page made it clear in a 5-page order that the issue of duplicate ballots remains unresolved and said the court's ruling is not binding in a future lawsuit, giving Coleman an opening.
Coleman attorney Tony Trimble said a lawsuit would block the seating of whichever candidate is declared the winner by the Canvassing Board. He also predicted that Coleman would be ahead when the recount is done, even with the alleged duplicate ballots included.
Still, Knaak said the campaign was "deeply disappointed" in the court's order.
Franken's campaign welcomed the decision, saying it means the recount will move forward.
"We approach the end of a recount that Minnesotans can be proud of - and one that we strongly believe will result in the election of Al Franken," campaign spokesman Andy Barr said in a statement.
The issue before the state Supreme Court concerned damaged ballots that couldn't be fed through optical scanners. Under Minnesota law, election judges must copy such ballots, mark the copies as "duplicates" and count them, while keeping the originals in an envelope. Coleman contends both originals and duplicates made it into the recount, and his attorneys went to the court when the Canvassing Board ruled against him on those ballots.
Page wrote that the justices didn't have enough information to determine whether original damaged ballots and duplicates were counted twice.
"We do not and cannot decide that question based on the record presented in this limited setting," the court order said.
Chief Justice Eric Magnuson and Associate Justice G. Barry Anderson - who both serve on the Canvassing Board - did not participate in the decision.
The court also extended the deadline for counties to sort improperly rejected absentee ballots, giving officials until Jan. 2 to deliver them to Secretary of State Mark Ritchie. His office has until Jan. 4 to count the ballots, which will be wrapped into the recount.
The campaigns will be allowed to challenge the official count during that process, and the State Canvassing Board will rule on the challenges. The campaigns are identifying the improperly rejected ballots across the state together.
Coleman led Franken by 215 votes out of about 2.9 million cast on Election Day, well within the threshold for an automatic recount under state law.