The Minnesota Supreme Court will not wade into the murky issue of allegedly double-counted ballots in the U.S. Senate contest. Sen. Norm Coleman’s campaign believes that in some instances both duplicate and original ballots were mistakenly included in the statewide manual recount. It had asked the state’s top court to prohibit the canvassing board from certifying any election results until the issue is resolved.

But a unanimous Supreme Court ruled today that it doesn’t have sufficient information to get involved in the matter. “We do not and cannot decide that question based on the record presented in this abbreviated proceeding,” Justice Alan Page wrote in his opinion for the court.

This doesn’t mean, however, that the issue of double-counted ballots is dead. More than likely it will now be contested in district court, where there would be an opportunity for both sides to present evidence and testimony on the matter. Coleman attorney Fritz Knaak told Minnesota Public Radio’s Tom Scheck today that the decision “virtually guarantees that this will be decided in an election contest.”

The Franken campaign, not surprisingly, hailed the Supreme Court’s action. “Minnesotans have waited a long time to find out who won this race,” communications director Andy Barr said in a statement, “and today’s unanimous ruling means that the process can move forward despite attempts to halt its progress and cast doubt on the result.”

In a related matter the Supreme Court also extended the deadline for local election officials to identify wrongfully rejected absentee ballots. The justices originally ordered county canvassing boards to certify adjusted tallies that included such ballots by the end of the calendar year. Under today’s order they are now required to identify any mistakenly rejected absentee ballots and deliver them to the Secretary of State’s office by January 2. The state’s top election official will then have two days to tabulate the ballots.

The canvassing board is slated to meet on January 5 and 6. Theoretically it could (finally) certify a winner at that time.

Complaining in a statement this afternoon that “[A]dvocates for the Franken campaign stood outside [the meeting] with signs reminiscent of Florida in 2000,” Coleman attorney Fritz Knaak asserted:

[T]here is [sic] no longer any uniform, statutory levels or standards by which legally rejected absentee ballots are being considered and reviewed in Minnesota.”

Franken attorney Marc Elias responded in a conference call with reporters:

“There is a uniform counting standard in Minnesota: It is the election code of Minnesota. … They are hoping to run out the clock.  … I don’t know what the Supreme Court or the state would say except, ‘Read the election code.’”

Knaak anticipated that response in a letter sent to the Canvassing Board after the meeting:

Although Minnesota law is clear on the grounds upon which absentee ballots may be rejected, a strong likelihood exists that these standards will be interpreted differently by each county that engages in this process …

“The Coleman people will try to spin you,” Elias said, advising reporters to ignore what his counterparts in Coleman’s campaign say and pay attention to the legal filings.

They are seeking an injunction. They are seeking to stop counties from counting ballots. … Desperate times call for desperate measures. They have internally realized what we have been saying: that Al Franken is leading by four votes.

Elias said the move represented a “change in perspective” for Knaak, pointing to Knaak’s reported Nov. 26 statements that the number of wrongly rejected ballots (now estimated by Secretary of State Mark Ritchie to be between 1,000–2,000 statewide) would be “miniscule” and break both ways, and that such ballots should be counted.

Asked about Supreme Court Associate Justice G. Barry Anderson’s opinion at the Canvassing Board meeting that the wrongly rejected ballots — the so-called “fifth pile” — would in many counties spawn many sub-piles, Elias said he interpreted that as part of the “thinking out loud” the board members engaged in before coming to their unanimous decisions.

But it was a tack that Knaak attacked with alacrity in his statement:

… [A]s one State Canvassing Board member pointed out today, it’s no longer just one fifth pile. It’s a fifth pile with subpiles from A to Z with no uniform standard for determining which, if any, legally rejected absentee ballots ought to be included in a pile.

But Elias was elated anyway. “It’s a good day,” he said.

Here is the resolution that passed the State Canvassing Board by unanimous vote today:

To facilitate the review of challenged ballots, the State Recount Official is directed to open the challenged ballot envelopes to remove those challenged ballots which have been withdrawn by each of the two candidates or their representatives. The State Recount Official shall report to the Board the allocation of votes resulting from the withdrawal of these challenges.

The withdrawn challenged ballots shall be sealed into separately labeled envelopes for return to the jurisdiction from whence they were received.

The State Recount Official will arrange for this process to occur in an appropriate room and at an appropriate time and shall inform the candidates and the public of the time and location so that they may observe if they so desire. The State Recount Official may designate any member of the staff of the Office of the Secretary of State to assist in this task.

The remaining challenged ballots shall be sealed into separately labeled envelopes by jurisdiction from whence they were received and be kept secure for review by the Board.

The canvassing board also passed a motion recommending that county election officials sort rejected absentee ballots into five piles — four stacks of ballots rejected for valid reasons, with the fifth pile representing votes mistakenly left out of the initial tally. This directive could presumably pave the way for such votes to be included in the recount.

According to the Secretary of State’s Office, 49 counties have already sorted rejected absentee ballots in this manner and reported the results. What they discovered: 638 ballots were improperly rejected in those counties, or 13 percent of the total. Extrapolating out across all 87 counties, this means it’s likely that roughly 1,500 absentee ballots were wrongly rejected — more than enough to sway the outcome of the election.

The canvassing board’s actions were largely in line with positions advocated by Al Franken’s campaign. “We are pleased that the state canvassing board has affirmed what we always believed to be true: Minnesota is not a state that disenfranchises its voters,” said Andy Barr, communications director for the Franken campaign, in a statement released after the hearing. “Today’s decisions represent positive and productive steps towards ensuring that this election is decided fairly and accurately, as well as a complete rejection of the Coleman campaign’s effort to throw out lawful votes from Minnesotans.”

The canvassing board’s actions will likely keep the electoral contest out of the courts for now. But it remains to be seen whether counties that previously refused to sort rejected absentee ballots into five piles (most notably Ramsey and Washington) will now do so. According to Washington County elections supervisor Carol Peterson, they have not yet determined how to proceed in light of the board’s decision. “It hasn’t been re-evaluated yet,” said Peterson. “That is something that we would run past our county attorney’s office.” (Ramsey County elections manager Joe Mansky could not immediately be reached for comment.)*

Secretary of State Ritchie stated that he can’t predict whether the reluctant counties will now move forward with sorting the ballots, but said he believes they want to make sure their tally is accurate. “Most of the counties I’ve talked to are very anxious to correct errors that they find,” he said.

The canvassing board also implored both campaigns to reduce the number of challenged ballots. Roughly 6,600 ballots were initially disputed by representatives of the Coleman and Franken camps. But both sides have since rescinded more than 1,000 of those challenges, leaving roughly 4,200 ballots in dispute.

The canvassing board is slated to begin inspecting the challenged ballots on Tuesday in order to make the final determination on which candidate a voter intended to support. That process is scheduled to last just four days, but presumably could drag on much longer if the tally of challenged ballots doesn’t continue to drop significantly.

Ritchie told reporters after the canvassing board hearing that the outcome of the Senate contest remains very much up in the air. “Absolutely no one can tell or predict who will have the most votes from Minnesota voters from November 4th until this process is completed,” he said.

*UPDATE*
I just spoke with Mansky. He says that they’re going to meet with the Ramsey County Attorney’s Office on Monday to discuss how to proceed. But local election officials have already gone through the rejected absentee ballots and determined that there were 156 (including 34 in St. Paul) that were improperly left out of the initial count. So the physical process of actually sorting the ballots into the notorious five piles would not be particularly difficult if they decide to proceed.

“There are votes in Minnesota that aren’t even being accounted for, much less being counted,” spokesman Andy Barr told reporters at a press conference at Franken headquarters in St. Paul this afternoon.

Franken’s recount attorney, Marc Elias, said the campaign had become aware of the problem in the last few days from reports in the press as well as from campaign workers in the field. “Ballots have gone missing,” Elias said, calling it “a serious matter [that is] very concerning.”

He named more than a half dozen instances — from St. Paul to Duluth, and Crystal to Apple Valley — where the recount has turned up discrepancies between the number of recorded votes and the number of ballots county officials have been able to produce. And besides the cases reported in the news media, Elias said, the campaign’s own information indicates “this problem may be even more widespread.”

Elias acknowledged that “sometimes ballots go missing and then they get found” and that “missing ballots are not automatically an indicator that there is cause for concern.”

“In an election this close we cannot let any lawful vote go uncounted, and neither can we allow ballots to simply go lost,” Elias said.

Elias said the campaign’s letter to Ritchie would ask him to “launch an investigation to identify any and all missing ballots, and to immediately instruct local elected officials to redouble their efforts to find all missing ballots.”

As for the recount itself, Elias said the Franken campaign’s internal numbers, based on the judgment of the recount officials rather than challengers from either campaign, indicate that “the margin remains in double digits. In fact, it has narrowed since Friday.” He said that included ballots recounted on Saturday but not today. Official figures as of Saturday night had Coleman ahead by 167 votes with two-thirds of ballots recounted.

“When will Franken be ahead?” a reporter asked. “When it’s over,” Elias answered. He said the ballots already recounted remain “a slightly redder pile,” a subset that’s more Coleman-friendly than either the ballots remaining to be counted or the total ballots cast Nov. 4 taken as a whole.

Barr and Elias said nothing about events in Mower County today, where The UpTake has taken reports of recount officials and Franken challengers in conflict. The latest word is that tensions have calmed, apparently following a call from Ritchie.

Elias acknowledged the growing number of challenged ballots in the recount but said that in the end, the State Canvassing Board determines which candidates gets the votes from challenged ballots. “And there is nothing that either campaign can do about that by issuing challenges.”

Note: The Minnesota Independent hopes to cover Sen. Norm Coleman’s press conferences as we have Al Franken’s; however, Coleman’s campaign staff has refused entry to and in one instance ejected our reporters.

Video via The UpTake

“We have reason to be optimistic,” recount attorney Marc Elias told reporters at an afternoon press conference. “We are picking up votes across the state.”

The candidate himself — seldom seen locally since recount gears began turning — shared that view, according to communications director Andy Barr. “Al is cautiously optimistic,” Barr said.

Describing the stacks of ballots recounted by hand Wednesday as a “slightly redder” subset of the 2.9 million ballots cast on Election Day, Elias said the campaign believes Franken closed the gap with incumbent Republican Sen. Norm Coleman by more than the secretary of state’s official count of 43 votes.

Elias also claimed to have seen local examples of the same phenomenon in Hennepin, Ramsey and St. Louis counties, where Franken gained on Coleman in recounts of areas where the Nov. 4 election results show the Democrat didn’t run as well as in the remaining (yet unrecounted) precincts in those counties.

Elias said he was relying on internal campaign tallies of the recount’s Day One results, including reports from counties whose results came in too late at night to be part of the state’s official count at 8 p.m. Wednesday.

Elias also said that anecdotal evidence received Wednesday about frivolous challenges has emerged as a pattern. “There are clearly a significant number of instances of challenging clear Franken votes,” he said. “We have seen examples of challengers that clearly are not meritorious and will not be upheld by the Canvassing Board.”

Elias granted that some of the frivolous challenges he alleges could be due to first-day jitterson the part of Coleman workers. He also conceded that Franken’s challengers — who on Wednesday demanded that nearly as many ballots be set aside for Canvassing Board review as did the Coleman challengers — may have also been overzealous. “It’s a very good question,” he said. “It’s part of our review.”

Competing with the recount for the campaign’s attention, Elias said, were the newly arriving lists of voters whose absentee ballots had been rejected by county election officials. That flow of info follows a Ramsey County District Court ruling Wednesday ordering Ramsey Countyto provide any such lists to the Franken camp.

Barr said about three dozen counties had so far followed suit. But the data isn’t uniformly presented, Barr said, so the campaign wasn’t sure what it had yet and wouldn’t state what it plans to do with the lists. On Tuesday, the state Canvassing Board promised to consider whether it would conduct its own review of rejected absentee ballots.

Barr expressed satisfaction that the Coleman camp’s claims of victory were being taken with a grain of salt even in GOP circles. “It’s becoming increasingly clear that national Republicans are beginning to realize that Sen. Coleman has not been determined the winner of the race and are becoming concerned,” he said, noting in particular that some Republicans are already suggestions of other lines of work for Coleman, such as the post of Republican National Committee chairman.

“We think we’re three for three right now,” Fritz Knaak, the lead attorney for the Republican, told reporters just moments after a statewide canvassing board officially initiated a recount in the closest U.S. Senate race in Minnesota history. “He’s got more votes than the other side. That’s how it works in our system.”

Unfortunately for the Coleman campaign, nobody informed Secretary of State Mark Ritchie of this development.

“Candidates can say anything,” Ritchie noted. “Minnesota law is very clear that any election within a half a percent is not known until the completion of the recount.”

So despite the repeated assertions of victory by the Coleman campaign, Wednesday morning at 8 a.m. the process of manually inspecting 2.9 million ballots will begin at locations across the state. The arduous task is expected to be completed by December 5. The incumbent currently leads by just 215 votes.

But the imminent beginning of the recount will apparently do little to stem the political rhetoric flying back and forth between the Coleman and Franken forces. Minutes after Knaak made his latest “Mission Accomplished” declaration, the Democrats held their own press conference.

Communications director Andy Barr (pictured), naturally, disputed the Coleman camp’s assertion of victory.

“The only person who has named Norm Coleman the winner of anything is Norm Coleman,” he noted. “He had not won this election the first time he declared victory. He had not won this election the second time he declared victory. And as I stand here before you, dealing once again with the phony talking point that will not die: Norm Coleman still has not won this election.”

The manual inspection of ballots is not the only front in the election fight that will see action tomorrow. A lawsuit filed by the Franken campaign — seeking to force local election officials to disclose information on absentee ballots that were invalidated — will get its first hearing tomorrow morning in Ramsey County District Court.

The Democrats are also seeking to have the canvassing board inspect the rejected absentee ballots. In a brief filed with the five-member panel yesterday, the Franken campaign highlighted four cases of voters whose ballots it believes were wrongly invalidated. But the canvassing board punted on the decision for now, wanting more time to study the issue.

Mark Ritchie denied that the legal wrangling and heated rhetoric will delay the recount from moving forward. “Absolutely not,” he said, asserting that the five-member panel is in accord on this issue. “Every person who spoke said out loud that the recount will go forward.”

What will happen to absentee ballots that were rejected as invalid by local election officials? That’s the question currently roiling the U.S. Senate contest between Norm Coleman and Al Franken as a state-mandated manual recount gets underway this week.

The Franken campaign has sought information on rejected absentee ballots from all 87 of Minnesota’s counties. But some jurisdictions, including Ramsey and Hennepin counties, have refused to provide the data, arguing that it is private. Last Thursday the Franken campaign filed a lawsuit in Ramsey County District Court seeking to force the county to release the information. A hearing on the case is slated for Wednesday morning.

In the meantime, a statewide canvassing board, set up to oversee the recount process, is expected to consider the issue when it meets tomorrow. Secretary of State Mark Ritchie, who is part of the five-member panel, initially told reporters that the canvassing board would not weigh in on the issue of rejected absentee ballots, but subsequently reversed that decision.

In a brief submitted to the canvassing board today, the Franken campaign highlighted four instances where it believes absentee ballots were improperly rejected. For example, James Langland, a doctor in Pennington County, attempted to vote absentee by visiting the local election office to fill out his ballot. The ballot, however, was subsequently rejected because it lacked a proper witness signature. “Dr. Langland did everything correctly,” said Mark Elias, the lead recount attorney for the Franken campaign at a press conference today. “He actually went to the recorder’s office and asked them to witness the signature. And due surely to human error and nothing more, it resulted in it being rejected.”

It’s uncertain how many such ballots are at stake, but Hennepin County alone had 461 absentee votes invalidated. “That’s part of the problem; we are still looking for data,” said Andy Barr, Franken’s communications director. “We want to know how many absentee ballots we’re talking about and why they were rejected.”

The recount is slated to get under way on Wednesday. Over the next two weeks local election officials are expected to manually examine all 2.9 million ballots cast to determine which candidate an individual voter intended to support. Authorized representatives of the Coleman and Franken campaigns will be allowed to challenge any decision that they deem questionable. Those challenged ballots will then ultimately be ruled on by the statewide canvassing board.

Currently, Coleman holds a minuscule 206-vote lead, but that margin has already shrunk from more than 700 votes immediately after Election Day as counties have certified results and corrected errors. The shrinking gap has led the Coleman campaign to repeatedly question the integrity of the vote-counting process. Last week, for instance, campaign manager Cullen Sheehan raised doubts about the secretary of state’s ability to oversee an impartial process.

During today’s press conference, Barr noted that the state’s top Republican elected official, Gov. Tim Pawlenty, has recently acknowledged that there’s been no evidence of electoral shenanigans presented. “That begs the question,” Barr said. “If there is no actual evidence of wrongdoing or fraud in the process, as the Coleman campaign’s top surrogate says, how many more baseless charges and innuendos will we have to tolerate from the Coleman campaign? Our position, meanwhile, remains the same: count all the votes fairly.”

Elias told a news conference this morning of the case in Beltrami County (where officials have already provided the names Franken seeks) in which an elderly woman’s absentee ballot was rejected because her current stroke-impaired signature didn’t match the signature on file.

Pressed for more examples, Elias and campaign spokesman Andy Barr declined, refusing even to enumerate how many such cases it had learned of, responding that learning about more such cases was the point of the lawsuit.

Another reason counties reject absentee ballots is improper witnessing, Elias noted — a point confirmed by Beth Fraser, director of government affairs at the Minnesota Secretary of State’s office, who also said in an interview with the Minnesota Independent that late-arriving absentee ballots get rejected.

UPDATE: Barr tells Minnesota Public Radio that the Franken campaign had gotten the Beltrami County story wrong and the unnamed woman’s absentee ballot had been rejected for improper witnessing, not a signature mismatch.

Only about a dozen counties have so far complied with the Franken campaign’s data requests, Elias said. Among the counties denying Franken the names are Minnesota’s largest, Hennepin and Ramsey in the Twin Cities. Elias said the campaign had learned from officials at unspecified counties that the Coleman campaign was also seeking the data, and he invited Coleman to join the suit. If the counties don’t comply, Elias said further legal action could follow.

Here’s video from today’s press conference at Franken campaign headquarters in St. Paul. It begins with spokesman Barr summing up a series of debunked reports about the vote count, followed by attorney Elias’ description of an improperly rejected absentee ballot and the campaign’s lawsuit to learn whose absentee ballots were rejected.