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A three-judge panel of Stearns County Judge Elizabeth Hayden, from left left, Pennington County Assistant Chief Judge Kurt Marben and Hennepin County Assistant Chief Judge Denise Reilly listen to opening arguments made by the Franken and Coleman campaigns at the Minnesota Judicial Center in St. Paul on Monday.

Counties to supply ballots in Senate trial

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ST. PAUL - Three judges are handling the U.S. Senate election trial, but county election workers are not done with their part in the prolonged race.

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The historic election trial started Monday with claims from Norm Coleman's lawyers that ballots were not treated equally around Minnesota and some were counted when they should not have been.

The first day of the trial ended with the judges saying they were not confident in some of the Coleman campaign's evidence and would need counties to produce original documents.

County auditors or election directors will have to provide the court with an estimated 11,000 original absentee ballot envelopes that elections officials rejected.

The decision came after a complicated first few hours of the trial, and it shook up the Coleman campaign's strategy for the remainder of the week.

Coleman attorneys, who filed the lawsuit contesting the election result that gave Democrat Al Franken 225 more votes after a recount of nearly 3 million votes, said the bulk of their lawsuit deals with how absentee ballots were handled.

It could take several days for counties to send the sealed rejected absentee ballot envelopes to St. Paul, where they would be held by the secretary of state's office or the court.

Some county election officials will have an even larger role in the trial. The campaigns plan to call some as witnesses, and Pennington County Judge Kurt Marben, who sits on the three-judge panel, said the court anticipates that election judges and county officials will be called to testify.

Coleman, whose Senate term ended early this month, sat in on the afternoon's proceedings.

"This is important to me," the Republican said. "It's important to Minnesota."

Franken's campaign said the Democrat has not plans to attend the trial.

Marben, a judge in Thief River Falls, told Coleman's campaign to be prepared to move on to other arguments beginning today as the campaigns and court await the rejected absentee ballots from counties.

"We don't want to have a lull in this trial for any length of time," Marben said.

The campaigns refuse to predict how long the trial will last, but seem to be bracing for a long process.

Franken attorney Kevin Hamilton said the Coleman campaign's plan to review each rejected absentee ballot "will likely extend this trial until long after the snows of Minnesota have melted."

Even Coleman's team acknowledged the process will take considerable time.

"This is going to be extremely tedious and extremely boring," attorney Joe Friedberg said of reviewing individual ballots. "My guess is that we'll clear the (courtroom) gallery out in no time. But it's got to go ballot by ballot."

In opening statements, Friedberg told the judges they could prevent voters from being disenfranchised by reviewing and counting what the campaign believes are 4,500 to 5,500 rejected absentee ballots that should have been counted. Those would be on top of 1,300 that local officials already reviewed and decided should be counted after initially rejecting them. Before the trial, the campaign asked to have original ballots sent to St. Paul, but the judges said that was not necessary.

Coleman's case relies largely on the absentee ballot issue. Two other issues it will raise are that some votes were counted twice and that 133 votes from the Democratic stronghold of Minneapolis were counted even though the ballots could not be found.

"The absentee ballot issue controls what happens here," Friedberg said.

Hamilton told the court that there were human errors in the Senate election, but that every election has some errors. In the case of the Senate race, though, the Coleman campaign cannot prove that those errors were "serious" enough to change the outcome.

Results showed Coleman led after Nov. 4, but Franken came out on top after the recount.

The trial, which could take weeks or even months, is historic because it is the result of Minnesota's closest Senate race and never before has a U.S. Senate race been settled by an election contest.

As the election trial opens, Minnesotans have only one U.S. senator, Democrat Amy Klobuchar.

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