Democrat Al Franken’s campaign said Monday they  may ask the U.S.Senate or a court to intervene in a dispute over 1,000 absentee ballots Franken’s campaign says were wrongly rejected and should be included in the recount between the former Saturday Night Live comedian and incumbent Norm Coleman.

“Wherever the numbers stand today that number simply cannot be relevant if it does not include all the votes that were legally cast,” said Marc Elias, Franken’s lead recount attorney. “No recount can be considered accurate or complete until all the ballots cast by lawful voters are counted. If ultimately there is no remedy before the canvassing board or before the courts, then [the Senate] is certainly an option.”

Last week, the five-member canvassing board, which is chaired by Secretary of State Mark 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.

Senate Majority Leader Harry Reid weighed in on the issue last week. He said the canvassing board’s decision is a “cause of great concern.”

“As the process moves forward, Minnesota authorities must ensure that no voter is disenfranchised,” Reid said in a statement. “A citizen’s right to have his or her vote counted is fundamental in our democracy.”

Elias said that out of 9,000 absentee ballots rejected by state election officials at least 1,000 were wrongfully discarded for reasons such as unmatched signatures. About 288,000 Minnesotans voted by absentee ballot in the general election.

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.”

The legal brief Franken’s campaign filed with the canvassing board contained sworn affidavits from Jessup Schiks, Bruce Behrens, James Langland and Ordell Adkins, all of who voted for Franken via absentee ballot and had their ballots rejected for reasons that included signatures that didn’t match one that were on file with the state or inconsistent mailing addresses.

In the case of Langland, he voted by absentee ballot prior to Nov. 4, in person, at his local election office, because he said he was going to be out of town on Election Day. However, his ballot was rejected due to the absence of a witness signature.

After the canvassing board rendered its decision, Elias said “whether it is at the county level, before the Canvass Board, before the courts, or before the United States Senate, we don’t know yet. But we remain confident these votes will be counted.”

The canvassing board said last week it would conduct further research on the law and meet again to discuss the absentee ballots that Franken’s campaign wants to include in the recount.

In a three-page opinion issued two weeks ago to Ritchie on the matter, Minnesota Assistant Attorney General Kenneth Raschke Jr. said the canvassing board is “not to determine if absentee ballots were properly accepted.”

That’s for a judge to decide, Raschke said.

“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.”

But Franken’s attorneys said Raschke’s opinion contains “significant error.”

“In fact, both state law and key decisions from other states require that improperly rejected absentee ballots be included in the recount of an election,” says the seven-page legal brief Franken’s attorneys filed with the canvassing board two weeks ago. “The Board can, and should, make it clear that those ballots can and should be included during the course of this recount.”

The recount is scheduled to be complete by Friday.

But the canvassing board must certify the contest and declare Coleman or Franken as the winner before one of them can take the Senate seat by the time the 111th Congress is seated in January. If the race is still undecided or if the loser challenges the recount then the full Senate or Minnesota Gov. Tim Pawlenty can make a temporary appointment to fill the vacant seat.

“In that case…. Pawlenty could fill the seat with a temporary appointee, said Jim Gelbmann, the deputy secretary of state,” the Wall Street Journal reported. “The Senate also could fill the seat with its own choice, but that is unlikely because of the political uproar it could cause.

Steven Smith, a Washington University political scientist, told Minnesota Public Radio Friday that the U.S. Constitution gives the Senate the power to determine who it’s members will be and has on several occasions ignored a state’s election results when a candidate has challenged the integrity of the ballots.

“Ultimately, the Senate has complete authority to determine who was elected,” Smith told MPR. “There is a motion under Senate rules and precedents that allows any Senator to make a motion to refer the credentials to a committee, presumably the Senate Rules and Administration Committee, which has jurisdiction over election matters, in order to delay action on it.”

In his interview with MPR, Smith cited a 1974 election dispute in New Hampshire where 35 ballots were in dispute. After a few recounts, the Senate moved to have the Democrat in the contest seated. But Republicans filibustered the move and six months later the Senate declared the seat vacant and ordered a revote, which the Democrat won.

“The chances of such an amicable settlement seem slim in Minnesota, where the candidates have turned out hundreds of lawyers and volunteers to monitor the recount. In perhaps the largest hand recount ever, two election officials count the ballots into piles of 25, then hand them to another pair of officials to count again as campaign workers count along,” the Journal reported.

The Associated Press reported that the “Senate has in rare cases inserted itself into elections, including a 1996 Louisiana race and a 1974 New Hampshire contest. The body has the power to determine its members’ qualifications.”

Cullen Sheehan, Coleman’s campaign manager, said if Franken loses the election after the recount is complete he should not challenge the results in court and he should promise Minnesotans “that he will not allow this election to be overturned by the leadership of the Democratic Senate.”

Senate Minority Leader Mitch McConnell also warned his colleagues not to get involved in the contest.

“The recount process in Minnesota is being handled by Minnesotans, not D.C. politicians,” McConnell said. “And while neither side will agree with every twist and turn or every decision, I would hope that Washington partisans would refrain from injecting themselves into what is, by design, a non-partisan process.”

Coleman led Franken by 725 votes immediately following the Nov. 4 election. The razor-thin margin between the candidates resulted in an automatic recount, which Minnesota state law says is triggered if the margin of victory is less than half of 1%.

Coleman held a 215-vote lead going into the recount, which election officials are conducting by hand. Minnesotans cast ballots counted by optical scan voting machines. Coleman now leads Franken by 270 votes out of 2.9 million ballots cast, with nearly 90 percent of the recount complete, according to analysis by the Minneapolis Star-Tribune.

But Elias said Coleman actually leads Franken by 73 votes because the Coleman campaign has challenged thousands of ballots where votes was intended for Franken. Franken has also challenged several thousand ballots where Coleman was the choice of voters.

“We believe that Al Franken has gained enough votes to say that Norm Coleman’s lead is in the double digits,” Elias said.

Both campaigns are trying to reduce the number of challenged ballots, which currently stands at more than 5,600, before the canvassing board meets Dec. 16 to decide which candidate will benefit from the votes.

Elias said the Franken campaign will withdraw “dozens” of challenged ballots, but he would not provide an exact number.

In addition to the unresolved issue over the absentee ballots, Elias said there are still ballots from several precincts in the state that are unaccounted for.

In a letter sent to Ritchie last week, Franken campaign attorney David Lillehaug, said he has 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. The shortfall can easily shift the election to Franken or Coleman’s favor because the race between the candidates is so close.

“Missing ballots aren’t automatically an indication of foul play, but it should be a serious matter of concern,” Elias said. “We hope and call on the Secretary of State to issue clear instructions on all counties so that these ballots may be found and properly counted.”

Some ballots reported missing, Lillehaug said, later turned up in “machine trays, desk drawers, unmarked envelopes, and envelopes for other precincts.”

“Disturbingly, however, in some instances local officials serving as Deputy Recount Officials have refused to investigate and have instead brushed aside those concerns,” Lillehaug’s letter to Ritchie says. “For a hand count of ballots to be accurate, all ballots counted must be made available for review. In some instances, the ballots counted in the recount are fewer than the number of persons who voted (as reported by your office as having voted in that precinct). In an election this close, and with accuracy and transparency paramount, these differences are a serious matter.

“Accordingly, the Franken campaign requests that your office commence and immediate investigation to determine whether ballots are missing and, if so, to conduct a thorough search to locate them so that they may be promptly included as part of the recount of this important election.”