Republican Sen. Norm Coleman went before the state Supreme Court on Wednesday to block improperly rejected absentee ballots from Minnesota's U.S. Senate recount, with his lawyer warning that justices must act to prevent a repeat of the tortured 2000 Bush-Gore impasse.
"With the best of intentions, this could become Florida 2008," attorney Roger Magnuson told the court, saying it would be improper to add votes not counted on Election Day.
The argument drew stern words from Justice Paul Anderson.
"This is not Florida," Anderson said. "I don't appreciate the comparison. This is Minnesota, we've got a case in Minnesota and let's argue Minnesota."
The state's month-old recount lurched forward on two fronts Wednesday, with the state Canvassing Board continuing to review more than 1,000 challenged ballots while the Supreme Court went about its business.
An estimated 1,600 rejected absentee ballots are at stake in the question before the high court. Democrat Al Franken wants them counted; Coleman doesn't.
Magnuson argued that the ballots shouldn't be counted because of differences in the way counties decide what amounts to proper rejection. He said the matter would be more properly settled in a post-recount lawsuit.
Franken's attorney said state law sets clear standards for whether absentee ballots were properly rejected or not, and those rejected in error should be tallied. "Every validly cast vote in the race should be counted," said Franken's attorney, Bill Pentelovitch.
The court gave no indication when it would rule.
Across the state Capitol campus, the Canvassing Board continued to dispose of large blocks of challenges.
By Wednesday afternoon, Coleman had picked up 237 votes and Franken 65; another 116 were discarded. The board was rejecting nearly two challenges for every one upheld.
The net result was Coleman with a 360-vote lead, though that number was expected to change a great deal. Almost all the challenges handled in the early going were from Franken, and since many challenges were made to try to keep the other man's votes off the board, the high percentage of rejected challenges benefited Coleman.
The Canvassing Board went faster Wednesday thanks to dozens of on-the-spot withdrawals by Franken's representatives.
While the campaigns withdrew some challenges, they also restored others as they got a look at the board's thinking on different ballot situations.
For instance, the board OK'd ballots where the voter scrawled initials next to apparent errors. But it rejected votes where a person drew an "X" through a filled-out oval.
The board was counting Senate votes on ballots where write-ins for other races were argued to be a tipoff to the voter's identity and those where athletes, entertainers and cartoon characters appeared.
The toughest calls were on ballots where the marking fell outside of any candidate's oval. Members awarded several where the mark was close.
"This person has bad aim," Supreme Court Chief Justice Eric Magnuson, a board member not related to Coleman's attorney, said as he inspected one of those ballots.
Given the adjustments to their challenge piles, neither campaign was willing Wednesday to say exactly how many challenges they retained. The Franken campaign said its total challenges would remain under 500; the Coleman campaign, around 1,000.
The Canvassing Board hoped to finish its task by Friday, though the legal maneuvering promised to delay a final resolution to the Senate race. During the Supreme Court hearing, Justice Alan Page signaled as much in asking attorneys for both campaigns why the high court should step in now since the election is likely to end in litigation no matter what.
"Isn't that sort of the end of the line no matter what we do here?" Page asked.