Justices express skepticism on Coleman's claim in recount

ST. PAUL, Minn. — A lawyer for Norm Coleman, the Republican who is fighting a recount battle for a Senate seat with Al Franken, a Democrat, faced sharply skeptical questioning on Monday from justices of the Minnesota Supreme Court in a crucial hearing on the case.

Coleman, who served one term before the November election, is challenging the rulings of a state recount board and a lower court, which declared Franken the winner of the race by hundreds of votes.

Associate Justice Christopher J. Dietzen said Coleman's argument that thousands of absentee ballots had been wrongfully excluded had "no concrete evidence to back it up." He said, "in my experience, I've never seen an offer of proof like this."

The lawyer for Franken was also grilled about whether the differences in the acceptance of ballots did not show some evidence of the deeper electoral problems that the Coleman team described.

After an election with 2.9 million votes cast, it is these final five votes on the court that could settle the seven-month battle.

The court has seven members, but two of the justices served on the canvassing board that conducted the mandatory recount in the too-close-to-call race and did not participate in the hearing.

If the judges rule in favor of Franken, an author and former comedian, they could order the governor to issue a certificate of election allowing Franken to be seated in the Senate. If they agree with Coleman's arguments, the case would bounce back to the lower court for a new vote count using more relaxed standards of inclusion than some counties in the state used on Election Day.

In his argument, the lawyer for Coleman, Joe Friedberg, did not contend that there had been fraud at work in the election, but stated instead that thousands of voters had been blocked from having their votes counted by inconsistently applied rules about accepting absentee ballots. Whether a person's vote was counted depended "on where you sleep," he said. "We have significant disenfranchisement."

The presiding justice, Alan C. Page, pushed Friedberg to prove that the inconsistencies were so egregious that they went beyond what might occur in any election, and rose to the level of a constitutional violation of equal protection and due process.

Friedberg responded that the ballot problem was "horrible," but Page, who continued to press the point, did not seem satisfied with that answer.