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Attorney: Coleman appeal won't come this week

Republican Norm Coleman's attorney
/ Source: NBC News and news services

Republican Norm Coleman's attorney says an appeal of his Minnesota Senate trial loss probably won't come until next week.

Coleman has 10 days to ask the Minnesota Supreme Court to review a decision in Democrat Al Franken's favor. The court ruled Monday night that Franken won 312 more votes than Franken and should get an election certificate.

Coleman lawyer Ben Ginsberg says his team needs time to fully review the decision. They claim counties treated absentee ballots differently, creating constitutional problems.

The timing for the appeal is important because Minnesota is short a senator while the case moves through the courts. Once a notice of appeal is filed, the sides will have more time to submit written arguments.

The state law under which Coleman sued required three judges to determine who got the most votes.

"The overwhelming weight of the evidence indicates that the November 4, 2008, election was conducted fairly, impartially and accurately," the judges wrote. "There is no evidence of a systematic problem of disenfranchisement in the state's election system, including in its absentee-balloting procedures."

In its order, the judicial panel dismissed two attempts by Coleman to subtract votes from Franken over allegations of mishandled ballots in Minneapolis.

The judges also rejected Coleman's argument that a state board improperly made up for a packet of ballots lost between the election. His lawyers conceded that the ballots' disappearance rendered them invalid and that Coleman was entitled to review all ballots as part of the recount.

"I am honored and humbled by this close victory, and I'm looking forward to getting to work as soon as possible," Franken said in a statement Monday night.

"The campaign for this Senate seat has been long and expensive. But the fight ahead, the fight to rebuild our economy and repair our broken health care system and restore our standing in the world — that's a fight we must win. It's a fight we must win by setting aside partisan gamesmanship and working together."

Coleman isn't giving up
Coleman's lawyers claimed dozens of ballots were double-counted when their originals couldn't be fed into optical scanning machines on Election Day. They said it was possible that originals and duplicates were included in the recount.

"This order ignores the reality of what happened in the counties and cities on Election Day in terms of counting the votes," said Coleman's legal spokesman, Ben Ginsberg, in a statement. "By its own terms, the court has included votes it has found to be 'illegal' in the contest to remain included in the final counts from Election Day, and equal protection and due process concerns have been ignored." For these reasons, we must appeal to the Minnesota Supreme Court so that no voter is left behind."

The ruling diminishes Coleman's chances of retaining a seat that he won in dramatic fashion in 2002, when he narrowly defeated former Vice President Walter Mondale. Democratic incumbent Paul Wellstone died in a plane crash with two weeks to go in the campaign.

Franken, a former "Saturday Night Live" comic, entered the Senate race more than two years ago. A third-party candidate's strong showing left Coleman and Franken virtually deadlocked on Election Night, triggering an automatic recount of 2.9 million ballots. Coleman led by about 700 votes before routine double-checking of figures trimmed his edge to 215 votes heading into the hand recount. By the recount's end in January, Franken had pulled ahead by 225 votes.

Coleman's trial began in January and his appeal could push the race into May or beyond.

Coleman's lawyers have said their appeal will mostly center on violations of the constitutional guarantee of equal protection, arguing that counties had differing standards in treating absentee ballots.

Franken's attorneys argued that no election is absolutely precise and that all counties operated under the same standard.

In addition to the appeal, Coleman can also initiate a new action on a federal level. Either side can appeal an eventual state Supreme Court decision to the U.S. Supreme Court or throw the disputed election before the U.S. Senate, which can judge the qualifications of its members.

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