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Observers expect courts to decide Senate race

Attorneys for Minnesota's U.S. Senate candidates discuss issues in the recount Wednesday before the state Canvassing Board meets. Marc Elias of the Al Franken campaign, right, makes a point to Fritz Knaak of the Norm Coleman campaign. (Tribune photo by Don Davis)

ST. PAUL -- More than 3,000 Minnesota campaign volunteers and official election workers are wrapping up recounting 2.9 million ballots from U.S. Senate race, with at least 300 paid and unpaid attorneys watching.

Minnesota Canvassing Board members are considering what to do about an estimated 12,000 absentee ballots that local elections officials rejected. And the board, the state's top elections authority, is to meet Dec. 16-19 to officially certify either Republican U.S. Sen. Norm Coleman or Democrat Al Franken as the man who will be Minnesota's U.S. senator beginning Jan. 6.

The ongoing Senate vote recount is a labor-intensive, long, involved and, at times, controversial process.

But all that work may be for naught.

"I am about 99 and 44/100 percent convinced that the loser goes to court," said Hamline University professor David Schultz, one of the state's foremost election law experts.

Almost everyone watching the post-election maneuverings agrees that the Coleman and Franken campaigns are laying ground work for a court challenge. Even some of the state's top jurists, sitting on the Canvassing Board, said they expect the race to end up in court.

That should come as no surprise to anyone after one of the nastiest campaigns in state history. It also was the most expensive in Minnesota history, and most expensive Senate contest in the country this year, with $40 million spent by the two candidates.

Coleman claimed victory when ballots were counted the morning after the election, and he held a 215-vote lead. But that was so slim a difference that state law mandated a hand recount of every ballot. It appears the recount will produce a similarly thin margin.

A potential legal argument in the absentee arena would be that a voter was denied his constitutional right to vote, said Robert Hentges, a longtime Minnesota election law attorney. For instance, if a signature is not in exactly the right place or some other technical law violation occurred, a campaign could argue the vote should be counted.

It is possible that a judge or jury would have to look at hundreds of individual ballots to decide the case -- and, thus, the election.

Neither campaign shows any signs of ending the fight, keeping almost all of their staffs employed through the recount while adding attorneys. They even are raising money for their recount work.

There is no indication about when Minnesotans will know who they elected. A 1962 governor-race recount stretched into March. An Indiana congressional recount lasted more than a year, including court action.

The Coleman campaign claims to have no plans to contest the election in court.

"Everybody's speculating, of course, that this is where this is going to end up," Coleman attorney Fritz Knaak said. "We're not. We're still focused on the recount."

Franken attorney Marc Elias -- a Washington, D.C., lawyer experienced in recounts elsewhere -- repeatedly has said the campaign is taking the process step by step, refusing to say whether a court challenge is planned.

However, Elias said, all lawful ballots will be counted -- by county officials, the state Canvassing Board, in state courts or by the U.S. Senate.

Elias said no legal challenges will come before the state Canvassing Board meets to further discuss rejected absentee ballots, probably within the next few days.

"We have not ruled in or ruled out any action after that," Elias said.

Hentges said that if Franken loses the recount, Minnesotans can expect a court action over absentee ballots that local elections officials rejected for a wide variety of reasons. Elias said that most rejections probably are legitimate, but the Franken campaign wants to know for sure.

Both campaigns have lists of voters whose absentee ballots were rejected, and Franken volunteers are talking to some of them in an effort to find more votes. Elias has produced a handful of affidavits signed by rejected voters who say they feel their votes should count.

When an election does end up in court, Hentges said, judges often err on the side of counting all possible votes.

"The courts really don't want to overturn the will of the people," said Hentges, who is not involved in this recount.

Since the Canvassing Board is not expected to declare a winner until around Dec. 19, there is a good chance that a court case will not be wrapped up by the time Congress convenes on Jan. 6. If so, Republican Gov. Tim Pawlenty, a Coleman supporter, may be able to appoint an interim senator.

Even that is not certain. A court could order Pawlenty not to make an appointment, pending a judge's ruling. Or the Senate could become involved.

Paula O'Loughlin, University of Minnesota-Morris political science professor, said that the Senate could make the final decision about who is seated -- that has not happened much since the Civil War.

"They would rather just not to have that seat filled," she said.

The one thing Minnesotans know for sure is that Coleman's first six-year Senate term ends on Jan. 6.

"Let us say there is no clear winner and no certification of the vote when Norm Coleman's term expires," Schultz said. "He does not automatically carry over. There is a vacancy."

Issues other than absentee ballots could lead to court cases.

Franken and Coleman campaigns have challenged thousands of ballots, claiming voters' intent was not clear. Many of those challenges may be removed, but a few hundred probably will remain. That could lead to a lawsuit.

Then there are ballots that seem to have appeared or disappeared with little explanation in places such as Becker and St. Louis counties. The campaigns are looking closely at those cases.

Schultz said the possibilities are complex, and in many cases new to Minnesota.

"We are on uncertain grounds," he said.

If there is no clear decision by the time the new Congress begins on Jan. 6, and the Senate considers what to do, that will be interesting to watch, Schultz said.

"We are skating right on the constitutional edge in terms of what we know," he said. "This would be something that has not happened before."

-- State Capitol reporter Scott Wente contributed to this story.