As on Friday, five sitting justices grilled campaign attorneys, signaling dissatisfaction with both sides’ positions on a Coleman recount lawsuit. (Two of the seven-member court absented themselves because they’re serving on the State Canvassing Board that the Coleman campaign has been named as a defendant in the duplicates case.)

Roger Magnuson, Coleman’s attorney, asserted there’s evidence of double counting in 25 counties and wants the State Canvassing Board to check it out before certifying the vote. The double counting allegedly happened when voters’ original ballots got separated from the duplicate ballots onto which local election officials transferred the votes when vote-counting machines couldn’t read the original.

“This disenfranchises all the other voters,” Magnuson said, adding that the narrow margin of the race, which now unofficially has Franken at a 47-vote advantage, raises the specter “that the loser is declared the winner.”

Associate Justice Paul Anderson prodded Magnuson on questions of evidence and process. “Isn’t this an evidentiary issue best left for an election contest?” Anderson asked. (Election contests are lawsuits filed after the State Canvassing Board certifies the election results.) He also asked how the electoral emergency that the Coleman side asserts in the lawsuit measures up against the judicial yardstick scenario of a house burning down.

“[There is] enough suspicion, enough evidence,” Magnuson said. “[We're asking for] an extraordinary intervention simply to do the due diligence to settle this matter.”

Magnuson cited comments of concern about the likelihood of double-counted votes that Associate Supreme Court Justice G. Barry Anderson made last week as a member of the State Canvassing Board. (Chief Justice Eric Magnuson was also not present for today’s hearing because, like G. Barry Anderson, he’s on the State Canvassing Board.) Associate Justice Alan Page bristled at that: “Our fellow justices aren’t here and they don’t have to wrestle with this issue like we do.”

One major point of contention was how much work the requested court action would compel on the part of local election officials. Attorney Magnuson said it would be limited to 25 precincts statewide; “They’re cherry picking,” Franken attorney Bill Pentelovich countered. The Coleman camp is trying to rewrite agreed-upon rules for counting duplicate ballots, he said, and to ensure fairness “all 4,001 precincts would have to be recounted.”

Attorney Dan Rogan, speaking on behalf of defendant Hennepin County, said Coleman’s suit was wrong to single out counties at all because the remedy of recounting bypasses county canvassing boards.

Assistant Minneapolis City Attorney Peter Ginder said statements by City Elections Director Cindy Reichert about cases of double-counted votes — which Coleman’s camp frequently cites to buttress its claims — merely represented one of several possible explanations for tabulation discrepancies.

Attorney General Lori Swanson asserted the State Canvassing Board’s duty to sidestep the duplicate ballot question since — despite four of its members being judges — it has no authority to conduct the necessary fact-finding and make judgements based on such evidence.

That wasn’t sufficient, Attorney Magnuson said: “This court ought not to remain passive because this particular issue might determine the election in terms of who’s declared [victor].”

With that the court adjourned, making no immediate ruling from the bench — though a decision could come at any time.

Minnesota media mostly keep those two straight, but even locals find the profusion of Scandinavian surnames in the various recount venues vexing. Typical is KARE-11′s recent confusion of Roger Magnuson, an attorney who makes Coleman’s recount arguments before the state Supreme Court, with Eric Magnuson, the Supreme Court’s chief justice who doesn’t hear such cases due to his current service on the State Canvassing Board. (To make matters worse, there’s also a U.S. District Court Judge Paul Magnuson in Minnesota.)

And don’t even get started with another name that’s so common and so golden in Minnesota politics that it’s inspired a term –”The Anderson Effect” — to describe the often ill-informed preference voters give to candidates who bear it.

You can look in any political direction in Minnesota and find an Anderson. The last major recount in Minnesota 46 years ago involved Gov. Elmer L. Andersen (slight spelling variant there). The last non-Jewish major-party candidate (as it happens) for the U.S. Senate seat that’s now under recount was Joan Anderson Growe in 1984 (the others, all Jews, being senators Rudy Boschwitz, the late Paul Wellstone and Coleman). And this year an unknown Independence Party candidate named Bob Anderson drew a whopping 10 percent of the vote, possibly helping an embattled incumbent U.S. Rep. Michele Bachmann win re-election in Minnesota’s 6th Congressional District.

And sure enough, there’s a pair of Andersons on the Minnesota Supreme Court: Paul and G. Barry. The latter has recused himself from the courtroom for recount matters while he serves in the recount effort as an appointed member of the State Canvassing Board, just like his colleague Eric Magnuson — who was himself appointed this year to be chief justice after the retirement of a man who spent more than a quarter century on the state’s highest bench … a man by the name of (you guessed it) Anderson.

On a day like today when both the state Supreme Court and the State Canvassing Board are in action, and Scandinavian names are flying through rarefied air in the halls of power like so many potato pancakes, Minnesota needs to consult its most time-honored pair of experts in the Abbott and Costello vein: Sven and Ole.

SVEN: Oy, Ole, this recount is taking longer than lutefisk. Who’s deciding this here thing then?

OLE: Minnesota State Canvassing Board, they say.

SVEN: Who’s on that?

OLE: Well, there’s Magnuson and Anderson…

SVEN: OK, Magnuson and Anderson are canvassers.

OLE: No, Magnuson and Anderson are justices on the Minnesota Supreme Court.

SVEN: You said Magnuson and Anderson are on the State Canvassing Board!

OLE: Yah, for the recount they are but then they go back to being on the Supreme Court.

SVEN: So who’s on the Supreme Court while Magnuson and Anderson are doing the recount?

OLE: Well, there’s Anderson …

SVEN: But you said Anderson’s on the canvassing board!

OLE: That’s the other Anderson.

SVEN: So there’s still an Anderson on the Supreme Court?

OLE: Yah, he told Norm Coleman’s attorney, “This is not Florida.”

SVEN: “This is not Florida?” Well, who said it was?

OLE: Was what?

SVEN: Florida!

OLE: Magnuson said it was.

SVEN: Magnuson at the canvassing board said this is Florida?

OLE: No, Magnuson at the Supreme Court.

SVEN: There’s another Magnuson at the Supreme Court?

OLE: Roger.

Coleman announced that he intends to attempt a risky use of campaign funds to pay high-priced attorneys and investigators to defend against charges that could result from an FBI investigation into $75,000 that his benefactor, businessman Nasser Kazeminy, is alleged to have funneled to Coleman via his wife’s employer. At least Coleman’s campaign has leftover cash after the most expensive contest in state history.

Coleman attorney Roger Magnuson’s ominous references to the 2000 presidential recount debacle in Florida so annoyed state Supreme Court Justice Paul Anderson that Anderson cut Magnuson off, saying, “This is not Florida.” At least Magnuson didn’t let Anderson go on and on about Florida while the sitting justices silently seethed.

At 11:41 a.m. yesterday, a Coleman attorney was observed surfing the J. Crew Web site during the second day of the State Canvassing Board’s review of ballots that rival Al Franken challenged in Minnesota’s statewide Senate recount. At least it wasn’t the Neiman Marcus Web site.

Al Franken (Photo: Aaron Landry) and Norm Coleman (Photo: WDCpix.com)

Roger Magnuson wasted no time in bringing up Florida. In fact, the attorney’s first utterance before the Minnesota Supreme Court this afternoon referenced the legal debacle of 2000. Representing Sen. Norm Coleman’s campaign, Magnuson argued that the state canvassing board’s actions of Dec. 12, when it recommended that all 87 counties count wrongly rejected absentee ballots, were an “an invitation to go to Florida.”

But before Magnuson could begin to back up this assertion, he was interrupted by a clearly irritated Justice Paul Anderson. “This is not Florida,” he stated. “I’m just not terribly receptive to you telling us this is Florida.”

So it went throughout the one-hour hearing before the Supreme Court today, with the justices repeatedly interrupting and questioning attorneys for both campaigns. The justices seemed more interested in Andersen v. Rolvaag, the 1962 Minnesota Supreme Court case that helped decide the state’s deadlocked gubernatorial race, than Bush v. Gore.

At stake is whether improperly rejected absentee ballots (thought to number roughly 1,500) will ultimately be included in the U.S. Senate recount. The Coleman campaign filed the lawsuit and is seeking a temporary restraining order to stop local election officials from counting such ballots.

Only five justices were present for the arguments, rather than the standard seven. Chief Justice Eric Magnuson (no relation to attorney Roger) and Justice G. Barry Anderson have recused themselves from the proceedings because they are members of the canvassing board and therefore parties to the case.

Under Minnesota law there are just four conditions in which an absentee ballot may be properly rejected, including when ballots are cast by voters who were improperly registered or are lacking a signature. But Magnuson argued that it’s an illusion that these guidelines provide a clear road map for local election officials in dealing with such ballots. “The devil is in the details,” he noted.

Justice Helen Meyer expressed befuddlement at the Coleman campaign’s objection to the canvassing board’s actions. “What did the canvassing board do that’s objectionable?” she asked, noting that they merely recommended that local election officials sort rejected absentee ballots into five piles. “As I understand that’s the complete sum of what they’ve asked them to do.”

Magnuson was followed to the dais by William Pentelovitch, representing the Franken campaign. He argued, conversely, that the canvassing board, local election officials and the Secretary of State’s office had all acted properly in seeking to count all properly cast ballots. The Democratic attorney received equally brusque treatment from the five jurists.

Justice Paul Anderson wondered if they were facing a deadline for adjudicating the matter. “Is there a date beyond which this court cannot act?” he asked. Pentelovitch’s response: “I don’t think so.”

In other words, it may be awhile before the case is settled — and even longer before the official winner of the Senate race is determined. The justices gave no indication of when they may issue a ruling. “Thank you all,” Justice Alan Page said at the close of the proceeding. “A decision will be forthcoming.”

Afterward, Magnuson, who was one of the attorneys on the Republican side in Bush v. Gore, expressed optimism that the Coleman campaign will prevail. “I think they’re very concerned about the issues we raised,” he said of the Supreme Court justices, “and we’re very hopeful that they’ll come up with a solution that doesn’t walk us into the slough of Florida.”

The Minnesota Lawyer blog asks, “What’s that old saying about even the appearance of impropriety being improper?” Magnuson and Pawlenty worked together at at the law firm Rider Bennett. Magnuson worked on Pawlenty’s gubernatorial campaign. They are certainly good friends, and Pawlenty picked Magnuson to chair the Commission on Judicial Selection, a body that screens judges for appointment to the bench. Magnuson did not screen himself for the position.

“Unilaterally hoisting a longtime colleague with no experience on the bench directly to the high court’s top spot looks, at least to a lay observer, a little too convenient — especially when the appointee was previously in charge of screening judicial candidates for the governor,” wrote Minnesota Lawyer staff writer Dan Heilman.

“Magnuson comes across as remarkably informed and articulate on court-related topics. He’ll probably do a fine job,” wrote Heilman. “It’s too bad that the circumstances of his appointment seem perfectly aligned to invite scrutiny, deserved or otherwise.”