Coleman’s shrinking lead, combined with a state Supreme Court decision handed down Thursday, has heightened the chances that Franken could end up winning. | Composite image by POLITICO Coleman leads Franken by just 2 votes

Two votes are all that stands between Minnesota Republican Sen. Norm Coleman and Democrat Al Franken, according to the Associated Press tally in the state’s still-unresolved Senate race.

Coleman’s shrinking lead, combined with a state Supreme Court decision handed down Thursday, has suddenly heightened the prospects that Franken, who has trailed in every count since Election Night, could end up winning the seat after all the votes are counted.


Thursday’s court ruling dealt a blow to Coleman, who had filed suit to prevent rejected absentee ballots from being counted, but Republicans took solace in the court’s order to establish a uniform standard for sorting and counting those absentee ballots. Either way, the decision makes it likely the race will remain undecided until next year.

After nearly seven weeks of ballot-counting, partisan attacks and court hearings, the State Canvassing Board had hoped to certify a winner by the end of this week. But with hundreds of ballots still to be recounted and now, thanks to Thursday’s court ruling, more absentee ballots to be counted, that prospect is virtually impossible.

Secretary of State Mark Ritchie, who chairs the five-member board, said Thursday that it may not finish ruling on disputed ballots until Dec. 30 because of a recent influx of new challenges brought by the Coleman campaign.

After that, the eventual loser is expected to seek to overturn the outcome through litigation once the election tally is eventually certified.

But after trailing by 215 votes on Election Night and remaining behind in the recount, Franken’s campaign had renewed optimism Thursday after the board reviewed and ruled on many of the ballots disputed by Coleman.

Coleman’s lead had dwindled to five votes by the end of the day, according to the Minneapolis Star-Tribune’s unofficial count, which includes all of the ballots challenged by Franken and ruled upon by the state’s Canvassing Board and some of the more than 800 challenges brought by the Coleman campaign.

So far, the board has ruled on 887 disputed ballots with another 379 Coleman challenges scheduled to be taken up Friday.

Former Republican Minnesota congressman Vin Weber didn’t expect a clear result to emerge for some time.

“It's very complicated, and the lead may well go back and forth more than once,” said Weber. “Franken could lead tonight, but it won't mean much.”

With today’s court ruling, it appears Franken will also eventually net more votes once the rejected absentee ballots are included in the certified count, because absentee voters tend to skew in the Democrats’ favor in Minnesota. As many as 1,600 ballots could fall in the mistakenly rejected absentee ballot category.

The court ruled that both campaigns must meet with Secretary of State Mark Ritchie and county election officials to establish a uniform standard for identifying the rejected absentee ballots.

The Coleman campaign had argued that counting the absentee ballots is unconstitutional because different counties have been using different standards in deciding whether to count the ballots.

“It’s a sign they’re worried about those absentee ballots. The fact that they have challenged more ballots than Franken is another sign that they’re concerned about holding the lead and now very actively scouring for every vote they can find,” said Carleton College political science professor Steve Schier. “They’re no longer complacent about their lead at all.”

The Franken campaign argued that excluding the absentee ballots would disenfranchise hundreds of voters.

Then there is the issue of duplicate ballots, yet another matter before the board. Coleman’s campaign is concerned that as many as 150 ballots were accidentally counted twice during the recount process.

The dispute revolves around damaged ballots, for which election officials created duplicates so they could be processed through the counting machines. Both the original and duplicated ballots are supposed to be kept together. The Coleman campaign doesn’t have any evidence that votes were counted twice, but it points to precincts where the number of recounted votes was larger than the original Election Night number.

Before the board can rule on the issue, it must determine whether it even has jurisdiction to make a ruling.

Either way, more litigation is all but certain. Coleman’s campaign already has disputed the decision to include 133 ballots in the recount that appear to have missing from a heavily Democratic Minneapolis precinct. The ballots were originally counted on Election Night, and the canvassing board has agreed to revert to the precinct’s pre-recount tally.

“Litigation is inevitable,” said Schier. “If Franken loses — he’ll argue legitimate votes were not counted. If Coleman loses, he’ll argue illegitimate votes were counted.”