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Judges Elizabeth Hayden, center, and Kurt Marben listen Tuesday as Coleman attorney Joe Friedberg, left, and Franken attorney David Lillehaug approach the bench during the U.S. Senate election trial. Pool photo by Ben Garvin, Pioneer Press - Minn. State Capitol Bureau

Judges set ballot limit

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ST. PAUL - A judicial panel could review at least 5,000 uncounted absentee ballots for counting in the U.S. Senate election trial.

Judges ruled Tuesday Norm Coleman can argue to include in the election tally absentee ballots it believes were wrongly rejected in the Nov. 4 election. Coleman is challenging Al Franken's 225-vote victory in court.

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The ruling, which came on the trial's seventh day, means county election officials may have work to do in the coming days or weeks and that the trial could last several weeks or longer.

The three judges hearing the case said Coleman can bring forward absentee ballots it claims were legally cast but not counted in the election and statewide recount.

The ruling also said Coleman can submit absentee ballots it believes were completed improperly by voters because of election administrators' errors. An example would be when a voter fills out an absentee ballot in front of an election official, but that official fails to tell the voter a signature or other information is missing from the document.

Coleman's campaign says those two categories make up 4,797 ballots from around the state.

As the trial got under way, Coleman said all of Minnesota's 11,000 rejected absentee ballots should be part of the proceeding in order to create a level playing field, but it believes only 4,500 to 5,500 of those may have been wrongly discarded, attorney Ben Ginsberg said.

Franken attorney Marc Elias said only a small percentage of the absentee ballots that were rejected by election officials were wrongly discarded and should be counted. The Democrat's campaign wanted the court to include fewer ballots in the trial.

"It's neither a loss nor a win," Elias said of the decision.

The ruling suggests counties around the state will have to send to the courts the sealed envelopes containing those ballots that will be reviewed. It also is possible voters and county officials will be called to testify about specific ballots.

"As of now, that's the way we're proceeding," Ginsberg said.

Inside the St. Paul courtroom Tuesday, Coleman attorneys continued trying to show that counties applied different standards when considering which absentee ballots to count in the election and recount.

Coleman attorneys said that claim was validated by testimony from a Washington County official, who acknowledged his county's absentee ballot review varied slightly from another county's review.

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Kevin Corbid, who oversees elections in Washington County, said he and another election official did not consider whether an absentee ballot mistake was committed by the voter or an election administrator.

"Our position was that regardless of who made the error, if the correct material wasn't provided or the certificate (was not) filled out completely, that was a proper rejection," Corbid said under questioning by Joe Friedberg, a Coleman attorney.

Curbed agreed with Friedberg's suggestion that Washington County's policy was different than Ramsey County's. A Ramsey County official has testified that absentee ballots rejected because of administrative error should be counted.

Corbid, who spent much of Tuesday on the witness stand, said election officials in his county used information available to them at the time to decide whether to accept or reject absentee ballots. Still, he said there remain some ballots that should be counted.

The Coleman campaign also asked voters to testify Tuesday, including Anna Koehler of Rosemount, who told the court she voted absentee because she was pregnant and due to delivery in early November.

"I didn't want to miss that election," she said.

Koehler said she thought she filled out her absentee ballot application and the ballot correctly, but a signature problem prevented her vote from being counted.

The court order Tuesday offered some indication of the scope of the election trial, but campaign attorneys would not speculate how long the trial will last.

Additional absentee ballots could still be included for review in the trial.

Franken's campaign wants the court to consider counting 771 absentee ballots it says were wrongly rejected in the election. Some of those ballots may be included in the pile outlined by the court Tuesday, but others may not, so more than 5,000 ballots could be considered during the trial

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