ST. PAUL -- Five Minnesota Supreme Court justices must decide whether thousands of greater Minnesota voters' absentee ballots were unfairly rejected in the 2008 U.S. Senate race.
Republican Norm Coleman's attorneys on Monday told the justices that laws were not evenly applied, and actions in larger counties such as
St. Louis, Ramsey and Hennepin tilted last year's U.S. Senate election in favor of Democrat Al Franken.
Those Democratic-heavy counties "are the counties that relaxed the standards and let the votes in," Coleman attorney Joe Friedberg said after a Monday high court hearing. "Good, ole conservative Republican counties followed the rules."
Coleman, who appealed a three-judge panel's decision, said he hopes the Supreme Court sends the case back to the lower court with instructions to count more absentee ballots that had been rejected for a variety of reasons. He hopes that will give him the votes to beat challenger Franken.
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"It has been about the opportunity to ensure that ... 4,000 Minnesotans whose votes were not counted" are added to the total, Coleman said after a fast-paced, 70-minute hearing. "I don't know what is in those ballots, but every one of those would have been counted had they lived in a different area."
"There is a geographical difference," added Coleman attorney Joe Friedberg. "Depending on where you sleep, that depends whether you vote gets counted. That's ... correctable."
The attorney said he is not accusing anyone of breaking the law, but since larger counties counted more absentee ballots -- and they cannot be uncounted -- then smaller counties should do the same.
Monday's hearing, featuring justices regularly interrupting Friedberg and Franken attorney Marc Elias, will result in a decision to either toss out Coleman's case, which could result in Franken becoming senator, or send the case back to the district court panel to consider counting more absentee ballots.
After 2.9 million Minnesotans went to the polls Nov. 4, after a statewide recount and after a lengthy district court trial, Franken leads Coleman by 312 votes.
Barely a minute into oral arguments, justices began challenging Coleman's
attorneys on the adequacy of evidence they presented in an election trial and the legality of their suggested remedy. They want more ballots counted even if some absentee voters didn't fully comply with the law, applying what Coleman lawyers called a substantial compliance standard.
"Twelve thousand citizens who made good-faith efforts to vote were disenfranchised, with a variety of reasons," Friedberg said.
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But Justice Christopher Dietzen said he saw "no evidence or fraud or misconduct."
"It seems like you're offering little more than an opening statement in this case," Dietzen said. "Coleman's theory of the case, but no concrete evidence to back it up."
Elias disputed the Coleman disenfranchise argument, saying that it is only natural that election officials in different counties handle things
differently.
For instance, he told the justices, it may be easier to figure out if a voter is registered in rural Pine County than it is in the state's largest city, Minneapolis. In Pine County, he said, there may only be one street called "Main." But in Minneapolis, there could be a Main Street, a Main Boulevard and other roads with the name "main,"
making election workers work harder to verify registration.
Friedberg argued that just six or seven of the state's 87 counties checked whether people who witnessed absentee voters casting ballots were registered, as required by state law.
Friedberg said it is not fair that St. Louis County rejected no absentee ballots for that reason, while the Twin Cities suburb of Plymouth rejected 67.
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The justices didn't say when they would rule, meaning it could be days, weeks or even months before their decision in an election now seven months past its natural end. And the possibility that the race could be taken to federal courts means the state court's ruling may not be the last word.
The Associated Press contributed to this report.
