Ninety minutes after hearing oral arguments, the Minnesota Supreme Court rejected a petition by the Republican Party of Minnesota and Tom Emmer’s gubernatorial campaign to force counties to undergo a reconciliation in search of “phantom votes.” The Emmer team argued that election officials improperly counted votes on election night, but the opposition argued that they have followed the letter of the law.

The Supreme Court issued an order denying Emmer’s petition and said it would release its opinion later.

Diane Bratvold, an attorney for Emmer, argued that by law election judges should reconcile the number of ballots cast be reconciled with the sign-in roster at precincts.

All sides contend the law on counting ballots is outdated or unclear; current statute says ballots should be reconciled with signed “voter certificates” which are no longer used.

To make the process clear, the Secretary of State’s office has asked elections officials to use voter receipts — slips of paper handed to election judges after voters have signed in on polling place rosters. That was issued as a “rule” by the office, and has been in effect since 1982.

“Does the statute control the number of lawfully cast ballots or does the rule cited by the Secretary of State?” she asked. “Our position is clear: The voters sign as provided by statute not voter receipts as provided by the rule are the cornerstone for determining the number of lawfully cast ballots.”

Justice Alan C. Page said, “You only get a receipt if you’ve signed the register, so it strikes me that the practical effect is that you end up with the same number either way.”

“The trouble I’m having with your argument is that in order to get where you want us to go, it seems to me that what you are essentially saying is that the phrases voter certificate and election register in 240c20 are ambiguous,” said Justice Paul H. Anderson. “Your opponents, I think, argue that the phrases are obsolete.”

And that’s just what Mark Elias, attorney for DFLer Mark Dayton, said.

“I think that it is out of date and I think regulations are used to fill in where there is a statute that is either ambiguous or out of date,” he said.

One of Bratvold’s main arguments was that the legislature intended signatures to be counted with ballots, but Elias said that’s not the case. “It’s the signature that is crucial and there’s not signature on the voter receipt.

“The signatures issue is a bit of a red herring,” Elias said. “The purpose of having signatures serves an anti-fraud purpose. The purpose of the provisions we are talking about now are not about fraud, they are about counting.

“You aren’t going to count a pile of paper because it has a signature. It really is irrelevant to the issue today: What is the most effective way for a an official to conduct a ballot reconciliation in a polling place.”

Elias also added that the time to complain about the ballot counting procedures was before the election.

“The time to challenge the voting process is before the election,” he said. “I would urge this court to look at the fact… that this regulation has been used for a long time.”

He noted that Emmer had lawyers available and “this rule appears on the books. It’s not secret.”

Ultimately, the court agreed and denied Emmer’s petition shortly after oral arguments concluded. The decision means that the State Canvassing Board can meet on Tuesday to begin deliberation on the recount between Emmer and Dayton. Dayton currently leads by a margin of more than 8,700 votes.

The full hearing is available at TheUptake.

Below, comments from the courthouse in St. Paul hosting the Senate trial that now shows Franken has a 312-vote lead.

Minnesota Secretary of State Mark Ritchie, responding to a reporter after court adjourned today, about Coleman’s contention that his training of local officials was inadequate :

I’ll be interested to hear from the (election trial judges). … They appear not to have believed a word of it.

Coleman staffer Tom Erickson, approaching reporters after Ritchie finished speaking:

What did he have to say? “Nothing to see here — everything is fine”?

Franken attorney Marc Elias:

It is a sense of relief that it’s over, at a personal level.

Elias, in response to a reporter’s question:

I think the only way I’ll have a chance to talk to (U.S. Supreme Court) Justice (Antonin) Scalia about equal protection in a year is if we meet in a diner … in Bethesda (Md.).

Coleman attorney Ben Ginsberg, responding to Pioneer Press reporter Rachel Stassen-Berger, who asked first “What did your client do wrong to lose votes in a trial he started?” and then “Sorry, Ben, do you have anything other than rhetoric to back that up?” after he claimed that counting more ballots would give his client a winning margin:

If you did the reporting and looked at where the ballots were from …

Stassen-Berger, after Ginsberg finished speaking to reporters:

You want me to do the research? Give me the numbers!

Ginsberg on Coleman’s whereabouts:

He had a previous engagement. He’ll be … around.

Election-contest trial Judge Denise Reilly, looking down the bench at her colleagues, Judges Elizabeth Hayden and Kurt Marden, after they again leaned their heads together to share whispers:

(Reilly didn’t say anything but continued to stare in their direction after the kibitzing session ended.)

Deputy Secretary of State Jim Gelbmann, after opening the last absentee-ballot envelope:

That’s it.

Coleman shrugs: "Certainly there's uncertainty."

U.S. Sen. Norm Coleman was interviewed briefly by Fox 9 News Sunday night, in what seem to be his first on-camera public comments about the statewide recount in the race for his Senate seat in more than a month. On Nov. 21, Norm announced at a press conference in Monticello, Minn.: “I believe I’m a winner.” He claimed then not to be sweating bullets: “I’m not walking around, wringing my hands, worrying about the recount.” On Sunday, Coleman continued to put forward an unruffled persona, but he sounded less confident than he did a month ago (and much less confident than Al Franken’s attorney did on Saturday).

I feel fairly confident. In the end, the good Lord’s going to decide. The numbers look good to us. Certainly there’s uncertainty. I’m not worried about it. I’ve done everything I can do. I’m not really agonizing about the outcome.

See the rest of Coleman’s comments and a video link after the jump.

Life goes on, regardless of what your job is. I certainly love what I do. If I can keep doing it, I’ll be thrilled, and if not, I’m sure we’ll do something else.

Here’s the link to the Fox 9 video (hat tip: Daily Glean).

Al Franken. Photo: Aaron Landry, Flickr

With nearly 120,00 ballots still to be recounted in the Twin Cities prior to this morning, Al Franken’s lead attorney Mark Elias remains hopeful about his candidate’s chances. “There are very blue areas left to be counted, and the pile yet to be counted is slightly blue in color,” he said during a Monday afternoon conference call with reporters. As of this morning, Hennepin County had some 74,000 ballots left to be counted and Ramsey County had around 43,000 to go go. Team Franken shows Coleman leading by a mere 73 votes, a figure smaller than the 270 tallied by the Star Tribune.

Elias said the campaign would focus on two areas this week: rejected absentee ballots and missing ballots. And, Elias added, in a few days the Franken campaign will announce it’ll be withdrawing some of its ballot challenges. “It doesn’t do us any good to lodge a bunch of challenges that won’t be upheld,” he said. He couldn’t give a ballpark estimate for the number of challenges that will be withdrawn, but he did mark the low end: “It’ll be more than dozens, but I don’t want to go beyond that.”

The Franken campaign is redoubling efforts to get data on absentee voters who had their ballots rejected. Last week, a Ramsey County judge forced election officials to release that county’s data, and now all but nine counties in the state have complied. Team Franken has made a new request to those counties — Carlton, Dakota, Freeborn, Kanabec, Mower, Sherburne, Stearns, Wright and St. Louis (although Duluth has released the information) — and while the reaction “has been largely positive,” Elias says the campaign will “pursue all avenues open to us including legal action.”

Elias said 9,145 absentee ballots were rejected, and the campaign believes most were done so properly. The Secretary of State’s office puts the number of wrongfully rejected absentee ballots at around 500, but Franken’s campaign says that estimate is too conservative, offering up its own estimate of 1,000.

Another focal point of campaign activities will be the issue of missing ballots. Elias says that there have been “numerous instances” where ballots counted on Election Day were not included in the recount. He cited cases in St. Paul, Duluth, Coon Rapids, Hopkins, and elsewhere, offering one case where he says the campaign has “visual evidence of one ballot stuck out of the bottom of the [voting] machine” that had not been counted. Getting specific, he named an Inver Grove Heights precinct the had a 24-vote disparity and another, Woodbury’s Precinct 7, where the votes recounted differed by 29 from those counted on Election Day.

Even if technical or clerical errors are set aside, he said, “several hundred ballots” are missing.

“No recount can be considered accurate or complete until all ballots from lawful voters that are lawfully cast are counted,” Elias said in concluding. “Will Sen. Coleman choose to argue that legally cast votes not be counted? …Can officials look Minnesota in the eyes and say, ‘Your vote doesn’t count’?”

“We’ll fight for the next two weeks to prove the answer is no.”

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.”