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There's still 225 votes separating the Senate candidates in Minnesota, and by the time we're done, Minnesota could possibly give one day per vote to consider who actually won. The seemingly endless Senate contest has now received a seven week court hearing and is currently in the hands of a judge's panel that heard the case. A senator should have been sworn in months ago, but last November's election was so close it triggered a recount, putting Democrat Al Franken ahead of incumbent Republican Norm Coleman. Minnesota Public Radio's Elizabeth Stawicki covered the court hearing.
ELIZABETH STAWICKI: When incumbent Norm Coleman contested the election results Minnesota's Supreme Court chose a three-judge panel that was split evenly down political party lines to hear the case. Each judge had been appointed by a governor from a different party - Democrat, Republican and Independents.
Coleman's goal was to get the judges to consider as many unopened ballots as possible in hopes of overtaking Franken's slim 225 vote lead. Rejected absentee ballots from Republican-leaning counties provided the biggest cache of potential votes.
The judges must determine which candidate received the most legally cast votes. That sounds simple but it isn't. For instance, should the court open and count rejected ballots from voters such as St. Paul's Gerald Anderson, who signed his name in the wrong place.
Mr. GERALD ANDERSON (Voter, Minnesota): I couldn't believe this happened in America, that they could take my vote away from me. But they did. They did. And as far as I know they still haven't given it back to me. Well, I want it back. I am entitled to my vote.
STAWICKI: Last month, the panel made a key ruling that threw out a dozen categories of rejected ballots, speeding up the case but shrinking Coleman's pool of potential ballots to around 2,000. That number dwindled further by the end of the trial to fewer than 1,400. But during closing arguments, Franken attorney Kevin Hamilton argued that number was way off.
Mr. KEVIN HAMILTON (Attorney): You sort through their spreadsheet, which we've done using their data just simply to help the court analyze it, there are a grand total of six ballots as to which there is competent evidence before the court meeting all the requirements to show the ballots were lawfully cast. That's it.
STAWICKI: Coleman's attorney, Joe Friedberg, did not dispute his side had not proved all the elements that the panel required. He argued the judges applied the wrong legal standard and should consider ballots where voters substantially complied with the law. Friedberg also said the panel was wrong to find some kinds of ballots illegal that the state canvassing board had already approved and counted.
Mr. JOE FRIEDBERG (Attorney): They were rules on Election Day and they are desperately different from the rules you're applying, because you are looking at the statute. And on Election Day many counties didn't.
STAWICKI: The three-judge panel must now sort through nearly 2,200 exhibits and testimony from about 130 witnesses. Judges did not say when they'd reach a decision. But it doesn't end there. The contest loser can appeal to Minnesota's Supreme Court or try to file a claim in federal court.
Ohio State University election law expert, Edward Foley, says conventional wisdom dictates that the loser will appeal, but he suggests the situation might look different once the panel rules.
Professor EDWARD FOLEY (Election law, Ohio State University): Assuming that the three judges are unanimous, the way they've been all along, it's possible that the public reaction might be enough is enough.
STAWICKI: The pressure for that will likely mount as Minnesotans express their frustration at having just one senator at a time when some of the nation's most important legislation is being considered.
For NPR News, I'm Elizabeth Stawicki in St. Paul.
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