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Coleman: Include thousands in Senate tally

Former Sen. Norm Coleman sits in a courtroom in the Minnesota Judicial Center Monday, before the start of his lawsuit challenging the results of the U.S. Senate recount. Photo by media pool photographer Ben Garvin, St. Paul Pioneer Press

ST. PAUL -- An estimated 5,000 uncounted ballots should be included in the U.S. Senate election tally to avoid problems seen in Florida's 2000 presidential recount, Norm Coleman's campaign said Monday.

In opening statements at Minnesota's U.S. Senate election trial, an attorney for Coleman said counties applied different standards when they decided whether to reject absentee ballots in the election.

There were unopened, uncounted absentee ballots rejected in some counties while ballot envelopes with similar questions, including missing signatures and registration cards, were counted in other counties, attorney Joe Friedberg told the three-judge panel hearing the case.

"That's the definition of a violation of equal protection of the law under Bush vs. Gore," Friedberg said. "Everybody has to have the same standards apply."

The trial, prompted by Coleman's lawsuit challenging the election results that gave Franken 225 more votes, began this afternoon and could go for weeks or months.

Coleman's case relies largely on the absentee ballot issue. Two other issues it plans to 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. "Nobody - Mr. Franken's side, Norm Coleman's side - we don't know what's in there. For all I know I'm trying to get you to count ballots that might overwhelmingly favor Mr. Franken."

Franken attorney Kevin Hamilton, who referred to his client as "Sen.-elect Al Franken, said the following the statewide recount, the state Canvassing Board certified results showing that Franken won the election.

"With this lawsuit, contestants demand that this court overturn that certificate," Hamilton said of Coleman.

Overturning that decision would be "a breathtaking exercise of judicial power that should be undertaken in only the rarest of cases," he added.

Coleman was sitting in on the first day's proceedings. He arrived at the courtroom near the Capitol shortly before the trial's opening and sat with his attorneys at their table. Coleman's wife, Laurie, sat in the gallery.

The three-judge panel, not a jury, will decide the case. The district court judges - Kurt Marben of Pennington County, Denise Reilly of Hennepin County and Elizabeth Hayden of Stearns County - were appointed to the case by a Supreme Court justice.

Each campaign is trying to pick up votes from areas of the state where its candidate did well. The campaigns will call witnesses, including local election officials such as county auditors. Each side says it is unlikely voters will be called to testify, but have not ruled that out.

"It could be a very, very tedious process," David Schultz, an elections expert and Hamline University professor, said of the trial proceedings.

The trial comes nearly three months after the Nov. 4 election, when initial results put Coleman, whose Senate term ended earlier this month, on top. The state-mandated hand recount gave Franken the lead.

Coleman filed a lawsuit, known as an election contest, challenging those results.

The trial, taking place at the Minnesota Judicial Center, could take weeks or longer.

Senate election trials are rare, even nationally. Many states require congressional election challenges that center on alleged voting irregularities to be settled by U.S. Senate or House committees, Franken attorney Marc Elias said.

"The fact that there is an election contest in a state court is extraordinary," he said. "This is going to be an unusual and historic event."

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