Democrat Al Franken’s campaign attorney claims the former Saturday Night Live writer and comedian has pulled ahead of Republican Norm Coleman by 22 votes in the recount in Minnesota’s senate race.

Marc Elias, Franken’s lead recount attorney, said Wednesday that the campaign’s internal accounting of the recount includes the assumption that more than 3,000 votes cast for Franken that the Coleman campaign has challenged will be upheld by the state canvassing board, the panel overseeing the recount, in favor of Franken.

Coleman had a 215 vote lead going into the recount, which began two weeks ago. Elias said that Franken had netted 237 votes, which includes the challenged ballots, during the recount and that puts Franken 22 votes ahead of Coleman.

Coleman has challenged several hundred more ballots than Franken, meaning Franken could move past Coleman if all of the ballots cast for Franken are upheld by election officials. Franken withdrew Wednesday 633 of the 3,093 ballots his campaign has challenged. Coleman’s campaign will not withdraw any of their challenged ballots until the recount is complete, said camaign attorney Fritz Knaak.

Challenged ballots are not included in the vote tally. The state canvassing board will meet Dec. 16 to render a decision on the remaining challenged ballots.

“We are ahead by 22 votes at the close of business at the end of last night,” Elias said in a conference call with reporters. “We continue to believe we will gain votes during the challenge and review process, and feel good generally where we stand in the recount.”

‘Missing’ Ballots

Franken netted 37 votes Tuesday when Minnesota election officials found 171 “missing” ballots from a precinct in Ramsey County.

The ballots were not actually missing. Rather they weren’t counted by the optical scan voting machines. The voting machine broke down in the precinct on Election Day and was replaced, but the 171 ballots were never fed through the machine to be tabulated.

That prompted the Secretary of State’s office to issue a letter to Joe Mansky, the Ramsey County elections chief, demanding an explanation.

“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.”

Ballots Counted Twice?

But Franken’s net gain on Tuesday was wiped out Wednesday evening when state election officials moved to withdraw 133 votes in Minneapolis that resulted in a net loss of 36 votes or more for Franken due to ballots that were allegedly counted twice.

Election officials backtracked on that move late Wednesday evening having concluded that the 133 ballots are unaccounted for and were not counted twice. 

Still, Cullen Sheehan, Coleman’s campaign manager, accused Franken’s campaign of lying to the media earlier in the day by claiming the Democratic candidate moved ahead of Coleman.

“Today, they’ve invented a story of a lead in the recount,” said Sheehan. “We have confidence that on Friday the results of the recount will show Norm Coleman has emerged, again, as the winner of the 2008 United States Senate election.”

Unofficial results of the recount from Ritchie’s website show Franken leading Coleman by 2,535 votes with 92.6 percent of the 2.9 million ballots counted. Those figures were last updated Tuesday evening at 8 p.m.

An analysis by the Minneapolis Star-Tribune, meanwhile, shows Coleman leading Franken by 273 votes.

Dispute Over Absentee Ballots

The recount is scheduled to be complete by Friday. However, there are still unresolved issues over absentee ballots that Franken’s campaign said were wrongfully rejected and should be included in the recount.

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. 

According to Elias, Franken’s campaign has identified at least 1,000 absentee ballots improperly rejected and they have appealed to the state canvassing board to count the ballots. State election officials conceded that some absentee ballots were wrongfully rejected but they pegged the number at 500.

Franken’s campaign believes if the absentee ballots improperly rejected are included in the recount it could help Franken move past Coleman. 

Franken communications director Andy Barr said Monday that “although we believe that the majority of these…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.”

The canvassing board is scheduled to meet Dec. 12 to discuss the absentee ballots issue. But ultimately 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.”

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.”

Senate Intervention?

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 convenes 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.”

The Senate may be less inclined to interfere in the contest now that the possibility of a 60-seat filibuster proof majority has been lost. On Tuesday, Georgia Republican Sen. Saxby Chambliss defeated Democrat Jim Martin in a runoff.