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Coleman relies on 'equal protection' argument

ST. PAUL -- Norm Coleman says a constitutional principle, ensuring all voters are treated equally, drives his continuing U.S. Senate election fight.

The former senator said his appeal to the Minnesota Supreme Court about the 2008 election outcome, which he plans to file Monday afternoon or Tuesday morning, will offer a full airing of his key objection to the recent election trial.

The crux of the appeal, Coleman said, will be that under the U.S. Constitution's equal protection clause, there remain about 4,400 unopened absentee ballots that should be counted because similar ballots from other counties were counted.

"We think we've got a legitimate constitutional argument and believe strongly there are thousands of Minnesotans whose votes should be counted," Coleman said in a Forum Communications interview.

The Republican claims that the way absentee ballots were handled differently across Minnesota is in violation of the U.S. Constitution's mandate that states cannot deny any person "equal protection of the laws."

The equal-protection argument also could be the basis for a federal election lawsuit, but Coleman has not said whether he would continue his legal fight if he loses his state appeal.

The three judges who presided over Coleman's state-court lawsuit -- and named Democrat Al Franken the election winner in a Monday ruling -- dismissed his equal-protection argument. They said differences in how county officials reviewed absentee ballots -- such as whether they verified voter registration -- do not rise to the level of an equal protection violation.

The judges said there is evidence to support Coleman's claim that election officials made errors when deciding whether to accept some absentee ballots.

"Equal protection, however, cannot be interpreted as raising every error in an election to the level of a constitutional violation," the judges wrote. "Although not ideal, errors occur in every election."

Coleman disagrees.

"We're talking about clear policy choices made by various election officials in counties to apply different standards," he said. "It's an election. They have to have a single standard by which you decide whether a ballot should be admitted or not."

Much like he did early this year when he sued to challenge the statewide recount results, Coleman said his appeal will request that votes from a Franken-leaning Minneapolis precinct where ballots went missing be removed from the tally.

The Republican said he also will argue that votes were counted twice in some precincts, but said those two issues will play small roles in his appeal.

Wente works for Forum Communications Co., which owns the Daily Globe.