Justice G. Barry Anderson, left, and Judge Edward Cleary discuss absentee ballots.
Updated 1:30 p.m.
A state elections board decided it does not have the authority to decide whether rejected absentee ballots in Minnesota’s U.S. Senate race should be counted, but the five-member board this morning agreed that any absentee votes that were not counted should be part of an on-going recount.
The vote went against a request from Democrat Al Franken’s campaign that the state Canvassing Board look through thousands of absentee ballots to decide which ones should be counted.
Supreme Court Justice G. Barry Anderson, one of four jurists on the board, said there is little doubt the race between Franken and Republican U.S. Sen. Norm Coleman will end up in court, and that is where a decision about whether absentee ballots were property rejected should be decided.
"We do not have the authority to review rejected absentee ballots," Ramsey County Judge Kathleen Gearin said. "That’s the bottom line."
Chief Justice Eric Magnuson, another board member, went further and said the board has little authority to tell local elections officials what to do with absentee ballots.
Ramsey County Judge Edward Cleary argued to his fellow board members that they should encourage an examination of absentee ballots to determine whether ballots were improperly rejected.
The Franken campaign said this afternoon that it will not ask a court to overturn the Canvassing Board ruling. And attorney Marc Elias said the campaign does not plan to file a court action before the next Canvassing Board meeting, probably next week.
However, Elias would not rule out future lawsuits.
Local elections officials rejected about 12,000 absentee ballots for a variety of reasons. For instance, some ballots were rejected because of technical problems such as the voter did not sign paperwork in the proper place. In other cases, local officials rejected ballots because they could not find voters’ registrations.
The question is vital to the Senate race because fewer than 250 votes separate Coleman and Franken, according to the latest unofficial tallies.
A recount of the 2.9 million ballots cast in the race is scheduled to end by Dec. 5, with a narrow enough margin expected between the two candidates that the loser probably will take the election to court. Whether rejected absentee ballots should have been counted may be a major part of that court challenge.
Chief Justice Magnuson, with Secretary of State Mark Ritchie beside him. Judge Kathleen Gearin.