Election

ST. PAUL (AP) ― More than 6,400 rejected absentee ballots are becoming the focus in Minnesota's contested Senate election, as the state Canvassing Board prepares to decide whether to let some into the recount.

Campaigns for Democrat Al Franken and Republican Sen. Norm Coleman reached back into history to make their arguments before the board weighs in on Wednesday. Franken -- who trailed Coleman by 215 votes going into the recount -- is pushing to include ballots it says were wrongly rejected. Coleman wants them kept out.

Figures gathered by the secretary of state through Tuesday night show Coleman with a 238-vote lead when Nov. 4 tallies are compared with new counts in completed precincts. Four-fifths of ballots have been recounted. But Coleman has challenged 78 more ballots than Franken. Combined, the two have challenged nearly 3,600 ballots.

The St. Paul Pioneer Press reported that Itasca County officials said they would reopen their previously completed recount to include three absentee ballots that were apparently set aside in error.

Not all of the ballots would be fair game if Franken prevails in his push. Some were turned away because the voter wasn't properly registered. Other voters showed up in person after submitting a mail ballot, canceling the first ballot.

The Franken campaign has been pressing hardest for information on voters whose absentee ballots didn't count because there were problems with their signature and those where possible clerical errors occurred.

Lawyers for the ex-"Saturday Night Live" personality are citing a 1962 Supreme Court decision to argue that ballots should not be excluded because of technical mistakes or "an innocent failure" to comply with voting statutes.

His lead attorney, Marc Elias, said Tuesday he hopes the board will approve the counting of votes where the ballot rejection is debatable.

"It has the opportunity to do that and it has the authority and indeed I would say it has the obligation to do so," Elias said.

But Coleman's campaign sees its case bolstered by 1858 and 1865 decisions by the Minnesota Supreme Court that discuss the "purely ministerial" role of canvassing boards in disputed elections.

"Boards of canvassers have no authority to pass upon the regularity of an election or the qualifications of persons voting thereat," reads the 1858 opinion in a disputed state Senate race.

The canvassing board is made up of the secretary of state, two Supreme Court justices and two district judges. Its public deliberations are due to start at 9:30 a.m. Wednesday.

Fritz Knaak, Coleman's lead recount lawyer, said including the rejected absentees would be "an unprecedented step, one that has never been done before in Minnesota and one that we believe undermines the legitimacy of the overall process that's been created."

Knaak said it's also unclear who would analyze those ballots and decide on them if they were included. He said the issue is best left to a lawsuit that could follow the recount if the losing party contests the result.

Franken went to court last week to force Ramsey County to turn over lists of disqualified absentee voters, and Elias said three-quarters of Minnesota's 87 counties have now furnished such lists to the campaign, totaling 6,432 rejected absentee votes.

Elias said it's likely most of those ballots were properly rejected, but an affidavit submitted to the Canvassing Board by a DFL official listed 63 disqualified due to clerical errors, overlooked voter registrations or ballots sent to the wrong precinct.

"The fact is no Minnesotan should be disenfranchised because, quote, `We screwed up and somebody put it in the reject pile,"' Elias said at a news conference. "The canvass board has an opportunity to look at these rejected ballots and to do the right thing."

Itasca County's apparent clerical error on at least one ballot was cited in a new affidavit the Franken campaign filed with the Canvassing Board.

County Auditor Treasurer Jeff Walker told the Pioneer Press on Tuesday that: "It should have been counted. It wasn't counted -- there was no reason for it to be rejected." A county elections supervisor didn't return a call from The Associated Press.

Meanwhile, Franken's team continued raising questions about missing ballots on Tuesday, with Elias saying that the original machine count found 100 more ballots than the hand recount has so far.

He also distributed a photo of a corner of paper sticking out of the bottom of an optical scanner in Minneapolis and said election officials wouldn't open the machine to retrieve what he said was likely a ballot.

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Norm Coleman was born in New York City in 1949. Al Franken was born in New York City in 1951.

(© 2009 CBS Broadcasting Inc. All Rights Reserved. This material may not be published, broadcast, rewritten, or redistributed. The Associated Press contributed to this report.)