Lawyers for Republican Norm Coleman and Democrat Al Franken tussled over 19 categories that the judges have created to classify the reason absentees were rejected. Coleman, who trails Franken by 225 votes after a statewide recount, thinks ballots in most of the categories should be counted.

Franken thinks only a few should be. The judges' ruling, expected by Monday, is regarded as critical by both sides and Thursday's arguments had a sense of urgency.

Coleman attorney Joe Friedberg said he could provide thousands of examples where ballots from most or all of the 19 categories were counted in some counties but not in others.

"There's so many illegally cast absentee ballots that were already counted, the only way to fix it is by counting ballots that could ordinarily not be considered to be legally cast," Friedberg said. "That's a problem, but we didn't create it."

Franken's lawyers cite Minnesota law that clearly defines when absentees should be rejected, and argue that most of the 19 categories have ballots that were properly rejected. It's out of the court's jurisdiction to waive those requirements, Franken attorney Marc Elias said.

"The question of whether or not absentee voting ought to be easier, whether it ought to be harder, whether it should have fewer or greater requirements — those are questions properly left for the Legislature," Elias said.

Under state law, there are four legal reasons to reject absentee ballots: a misplaced signature on the envelope; the name and address on the envelope don't match voter rolls; the voter isn't properly registered; or the voter also voted on Election Day. People who vote absentee are also required to sign their ballot in the presence of a witness who is a registered Minnesota voter.

But the 19 categories established by the judges hone in on gray areas within those requirements, for instance: What if the witness failed to write down their Minnesota address? What if an absentee voter was sent a ballot from a different precinct than where they lived? What if instruction stickers covered the part of the ballot envelope the voter was supposed to sign?

Coleman attorney Jim Langdon said the vast majority of those rejections were due to simple, good-faith errors on the part of the voter, witness or poll worker — not any effort at voter fraud.

"Minnesota law presumes its voters follow the law. There hasn't been a whit of evidence submitted to the contrary," Langdon said.

The problem with rejecting flawed absentee ballots, Coleman's lawyers argued, is the evidence they've gathered that some counties draw a hard line on the absentee rules and some don't.

As an example, Coleman pointed to one of the 19 categories: Ballots that were rejected because the absentee voter's witness was not a registered voter.

In Carver County, the Coleman team calculated that officials rejected 181 ballots in that category. In Sherburne County, similar in population, officials only rejected one ballot like that.

"There simply was not a consistent application from one county to another, and sometimes even within one county," Langdon said.

But Franken argued that finding inconsistencies in the enforcement of the rules isn't important. It's that the rules are there in the first place.

Coleman's lawyers "talk a lot about what they wish the law might be rather than what it is," Elias said. "And what it is is a strict set of requirements for absentee voting."

The judges said Thursday they planned to end the trial early on Friday in order to work on an order setting out whether they think ballots in any of the 19 categories should be counted. Once that happens, it's likely to streamline a trial process that for the last two weeks has largely consisted of Coleman's lawyers making arguments on specific ballots instead of wider categories.

One exchange between Langdon and Judge Denise Reilly showed the judges seem to be weighing whether state law would allow them to undertake the sweeping reconsideration of rejected ballots sought by Coleman.

After mounting his argument, Langdon commented: "I sense you're not buying it, Judge Reilly."

She responded: "My concern is that the Legislature passed a statute, and I took an oath to uphold that law."

		Norm Coleman's attorney, Joe Friedberg, bottom left, and Al Franken's attorney, David Lillehaug, center, have a conference with judges Denise Reilly, Elizabeth Hayden, and Kurt Marben, near the end of the Minnesota Senate election trial on Wednesday at Minnesota Judicial Center. Pool photo by Jean Pieri