Franken Trails Coleman By Double-Digits in Recount, Attorney Says

Democrat Al Franken trails Republican incumbent Norm Coleman by just 50 votes with more than 200,000 ballots left to be counted in the closely watched Senate race in Minnesota, which is in the final stages of a recount, Franken’s campaign attorney said Tuesday.

“I have no doubt in my mind that Al Franken got more votes in this election than Norm Coleman,” said Marc Elias, Franken’s lead attorney on the recount. “I don’t know what that margin’s going to be. But the direction is all in one place, and we believe that’s going to continue. I think we’re going to win this recount… the only question is whether or not Norm Coleman is going to continue to have his lawyers fight.”

Elias, who was in Washington, D.C. Tuesday, said the 50-vote margin is based on election judges’ calls on ballots at the recount tables, the Minneapolis Post reported.

Here’s where it gets a bit confusing.

According to Minnesota’s Secretary of State website, Franken pulled ahead of Coleman Monday by more than 4,000 votes with 93.75 percent of precincts reporting. That number is expected to change as the remaining 200,000 ballots are counted.

However, according to an analysis by The Minneapolis Star-Tribune Coleman leads Franken by 301 votes. Yet, the newspaper’s analysis does not take into account nearly 6,000 ballots that both campaigns have challenged.

Elias’s 50-vote methodology is based on more than 3,000 challenged ballots leveled by Coleman’s campaign where people voted for Franken that Elias said will likely be upheld by election officials when they meet on Dec. 16. Franken has challenged 2,876 ballots.

Fritz Knaak, Coleman’s recount attorney, said the “math isn’t working for Franken” and the Democrat’s campaign has been forced to come up with an unrealistic methodology to claim Franken is trailing Coleman by double-digits. 

Elias said a “vast majority” of the nearly 6,000 challenged ballots leveled by both campaigns will likely be “thrown out.”

Elias said he is confident that Franken will gain a significant number of votes when the challenged ballots are resolved. The canvassing board will meet Dec. 16 to review the challenged ballots and decide voter intent. 

‘Missing’ Ballots Found

Minnesota election officials also said Tuesday they found 171 “missing” ballots from a precinct in Ramsey County, which Franken carried on Election Day. Franken received 91 votes from the 171 ballots and  Coleman got 54 votes. The rest went to other candidates.

The missing ballots were never “missing” in the first place. They ballots were not counted by the optical scan voting machines. The voting machine broke down in the precinct broke down and was replaced on Election Day, but the 171 ballots were never fed through the machine to be tabulated. 

The Secretary of State’s office demanded Joe Mansky, the Ramsey County elections chief, explain how the 171 ballots were unaccounted for.  

“The Office of the Secretary of State is concerned to learn that 171 ballots from Maplewood Precinct 6 were found in a voting machine’s auxiliary compartment,” says a letter sent to Mansky Tuesday. “Under the guidelines established by the State Canvassing Board for this recount, all votes not rejected, should be included in recount totals. However, this office is concerned that election judges of both parties did not notice the significant difference between the number of voters and the number of ballots when they finalized the results on Election night.

“This office has been proactive in repeatedly contacting the Deputy Recount Officials asking to re-check all machines, ballot boxes and ballot storage areas for all ballots cast by Minnesota voters in the Nov. 4 general election. Given the magnitude of the difference, the Office of Secretary of State is asking Ramsey County for a detailed explanation as to how this error occurred and went unnoticed until now. This office is requesting that the county re-verify the number of individuals who voted in this precinct, to reassure both this office and the public that these newly found votes were validly cast.”

Last week, David Lillehaug, another attorney working with the Franken campaign, sent a letter to Minnesota Secretary of State Mark Ritchie stating that he learned “from a variety of sources…the alarming possibility of missing ballots in numerous precincts throughout the state.”

According to the secretary of state’s website, 1,074 people in Clay County voted on Election Day but only 1,069 ballots were produced by the county for the recount. In St. Louis County, 1,649 people voted on Election Day but the county turned over 1,646 ballots for the recount. And in Washington County, 1,464 voted on Election Day but 1,449 ballots were turned over for the recount.

Dispute Over Absentee Ballots

The Franken campaign is also challenging a decision by the state canvassing board not to count at least 1,000 absentee ballots wrongly rejected by state election officials. State election officials believe that figure is closer to 500.

Franken campaign officials said about 9,000 absentee ballots (state election officials cite 12,000 rejected absentee ballots) were rejected for a variety of reasons, including unmatched signatures. Election officials conceded that some absentee ballots were improperly rejected. Franken’s campaign believes those ballots contain votes cast for him and could help him move past Coleman. 

Franken communications director Andy Barr said Monday that “although we believe that the majority of these 9,000 rejected absentee ballots were properly rejected, it is clear that among them are the improperly discounted ballots of Minnesotans who did everything right.”

“There are legal votes here that have not been counted,” Barr said. “We will take every step available to us to find out if absentee ballots were improperly rejected and ensure that those votes are counted.”

On Monday, Jim Gelbmann, the deputy secretary of state, sent an e-mail to election officials in Minnesota’s 87 counties and asked them to begin sorting through the absentee ballots that were rejected. 

“Board members expressed an interest in knowing the number of Absentee Ballots that may have been mistakenly rejected,” Gelbmann’s e-mail said. “In other words, the Board has heard anecdotal evidence of absentee ballots being rejected, even though the facts surrounding the ballot did not meet one of the four reasons stated in statute upon which an absentee ballot may be rejected.

“We simply are looking for the number of rejected absentee ballots that were legitimately rejected … and the number of rejected absentee ballots that were mistakenly rejected.”

Elias said Gelbmann’s e-mail may signal that the absentee ballots Franken’s campaign said were wrongly rejected may be included in the recount. The state’s attorney general will decide whether improperly rejected absentee ballots can be counted by the canvassing board.

Two weeks ago, Minnesota Assistant Attorney General Kenneth Raschke Jr. said the canvassing board is “not to determine if absentee ballots were properly accepted.”

“Courts that have reviewed this issue have opined that rejected absentee or provisional ballots are not cast in an election,” Raschke wrote. “Only the ballots cast in the election and the summary statements certified by the election judges may be considered in the recount process.”

Last week, the five-member canvassing board, which is chaired by Secretary of State Ritchie, two district judges and two Supreme Court justices, unanimously rejected a legal brief from Franken’s campaign that sought to include absentee ballots they said were improperly discarded on Election Day. Franken’s campaign believes the absentee ballots may help his chances of beating Coleman in the race.

The panel, which did not rule on the merits of the case, said it did not have the legal authority to include absentee ballots in the recount unless instructed to do so by a judge. The recount is scheduled to be complete by Friday.

“Irregularities, if any, in the handling of those absentee ballots can be addressed in the election contest process provided by law,” which would take place in a court of law when the recount is complete, said Supreme Court Justice G. Barry Anderson, a member of the canvassing board.

Elias said Monday Franken would consider asking the Senate to weigh in on the matter if the absentee ballots go uncounted. 

“No recount can be considered accurate or complete until all the ballots cast by lawful voters are counted,” Elias said. “If ultimately there is no remedy before the canvassing board or before the courts, then [the Senate] is certainly an option.”

The canvassing board is scheduled to meet next week to revisit the dispute over the absentee ballots.

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