After a day of legal wrangling, Al Franken's Senate campaign is confident the comedian will end the "reconciliation" process of the recount up roughly 50 votes over Minnesota Sen. Norm Coleman.
Marc Elias, the Democratic challenger's lead recount attorney, predicted that the final margin would be 47 votes. This tally, however, is hardly set in stone. On Tuesday, lawyers for Sen. Norm Coleman argued before the State Supreme Court that 138 or so ballots had been accidentally counted twice during the recount process. As such, they argued, the state should go back to 25 specific counties and use the Election Day tallies. Such a maneuver engendered sharp questions from Supreme Court officials and Franken's own legal team.
Why, for example, should the state focus only on 25 precincts, where it just so happens a reversion to Election night totals would favor Coleman? (If the 138 ballots were counted Coleman would gain an estimated 126 votes -- catapulting him into the lead).
"All 4,001 precincts would have to be re-canvassed," said Franken lawyer William Pentelovitch. "They've cherry-picked what they want to look at."
And what specific evidence did the Coleman campaign have to claim that 130 or so ballots had been double counted?
On Election Day, some voters had to use a second ballot after their first could not be properly scanned through machines. But the duplicates did not appear to be counted alongside the originals, as the Coleman team has argued, because the total number of votes from Election Day line up with the total number of votes after the recount.
Elias, speaking briefly to reporters, said the issue of what to do about the alleged duplicates should be resolved on December 30th. Though if the court rules that the state had to re-look at whether or not duplicates where counted, the Franken team could respond by challenging votes of its own.
Once that topic is settled, there will be only one more obstacle to resolution of the race. The two campaigns and state officials have not, as of yet, determined the best course of action for 1,600 or so improperly rejected absentee ballots. This pool seems likely to favor Franken, should it be counted, and could make any argument over duplicates moot. Resolution on that front, however, could extend weeks into January.