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.

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.”