Norm Coleman will appeal his U.S. Senate election lawsuit to the Minnesota Supreme Court.
A state judicial panel's decision to count up to 400 disputed absentee votes means Minnesota's unresolved Senate race will end up in the high court, Coleman's attorney said Tuesday evening.
"We're going to appeal," Ben Ginsberg said.
Shortly after the court Tuesday afternoon released an order saying it would count the ballots, the former senator's attorney said the decision leaves Coleman no choice but to ask the Supreme Court to review a decision that is expected to leave the Republican trailing Democrat Al Franken.
"We just think they're wrong," Ginsberg said of the district court judges. "We think that it is wrong to disenfranchise voters. We think it is fundamentally wrong to sort of sweep the problems of this election under the rug."
Franken leads Coleman by 225 votes, and with many of the still uncounted ballots coming from Democrat-heavy St. Louis, Ramsey and Hennepin counties, the Coleman camp has all but given up on its hopes of winning in this legal round.
If it loses a state appeal, a U.S. Supreme Court appeal is possible.
"Our next step is to the Minnesota Supreme Court, and I think that's all we're prepared to discuss at this point," Ginsberg said.
The three judges who heard a seven-week election lawsuit - Kurt Marben of Pennington County, Elizabeth Hayden of Stearns County and Denise Reilly of Hennepin County--made mistakes that changed the election's outcome, Ginsberg said. Their Tuesday order did not correct inconsistent rulings about how certain types of ballots should be handled and ignored evidence showing that counties treated similar ballots differently.
The court's order includes only a fraction of the uncounted ballots that Coleman's campaign wanted reviewed.
"Many Minnesotans will remain disenfranchised," Ginsberg said.
The three-judge panel Tuesday afternoon ordered county officials to send 400 ballots to the Secretary of State's Office by Monday. The judges are to open and count at least some of the ballots in open court a week from today.
"The order is clear," Secretary of State Mark Ritchie said. "The counties know what they need to do and this can be done fairly quickly."
Tuesday's order indicates the three judges conducted "a thorough review of the evidence" and next week will decide which of the 400 votes will be counted.
The judges' job is to determine which candidate received the most votes. The losing candidate has 10 days to file an appeal following the three-judge panel's decision.
Franken attorney Marc Elias stopped short of declaring victory, but in a conference call with Minnesota reporters from his Washington office obviously was happy.
"We feel pretty good about where we stand, but we will wait for Tuesday," Elias said.
Simple math all but rules out any reasonable chance for Coleman, Elias added. The one-term senator would have to gain at least 226 votes from the 400 to win.
"We don't really know which way these votes will go, (but) it is pretty much a long shot with that few ballots put in play," Ginsberg said.
The judges emphasized in their order that they were not promising to count all 400 ballots. Elias said it appears the judges need to make some final checks to determine which of those ballots should be counted.
Coleman entered the court case claiming thousands of ballots should be counted.
The Republican led immediately after the Nov. 4 election, but Franken wound up on top after a recount. During that process, counties and some cities counted each of the 2.9 million ballots by hand.
Coleman announced Jan. 6 that he would challenge the election in state court.
A day earlier, the State Canvassing Board certified election results that gave Franken 225 more votes than Coleman. But Coleman, who wants a second Senate term, alleged ballot-counting irregularities led to a flawed tally.
While the legal case continues, Democrat Amy Klobuchar is Minnesota's only senator.