Minnesota's highest court on Wednesday ruled against Republican Sen. Norm Coleman's attempt to keep dozens of possible double votes from Democratic-heavy precincts out of the long-running U.S. Senate recount, but left the door open for a lawsuit.
The state Supreme Court unanimously denied Coleman's request for a temporary restraining order to block the votes, which the Coleman campaign contended were duplicates that mostly favored Democratic rival Al Franken. The court upheld the state Canvassing Board's ruling on the matter.
The court's decision leaves Coleman with fewer ways to make up ground in the recount, where he now trails Franken by 47 votes. But Associate Justice Alan Page made it clear the issue of duplicate ballots was unresolved and said the court's ruling was not binding in a future lawsuit.
Coleman's attorneys, who said the campaign was "deeply disappointed" by the decision, added that it virtually guaranteed the recount would end in litigation and delay the seating of a Minnesota senator past Jan. 6, when the next Congress convenes.
"This is close enough so that inevitably as a result of this decision, either party is going to be filing a lawsuit," said Fritz Knaak, Coleman's lead attorney for the recount.
Meanwhile, Franken's campaign welcomed the decision, saying it meant the recount would move forward.
"We approach the end of a recount that Minnesotans can be proud of - and one that we strongly believe will result in the election of Al Franken," campaign spokesman Andy Barr said in a statement.
The issue before the state Supreme Court concerned damaged ballots that couldn't be fed through optical scanners. Under Minnesota law, election judges must copy such ballots, mark the copies as duplicates and count them, and keep the originals in an envelope. Coleman contended both originals and duplicates made it into the recount, and his attorneys went to court when the Canvassing Board ruled against him on those ballots.
Page wrote that the justices didn't have enough information to determine whether original damaged ballots and duplicates were counted twice.
"We do not and cannot decide that question based on the record presented in this limited setting," the court order said.
Chief Justice Eric Magnuson and Associate Justice G. Barry Anderson - who both serve on the Canvassing Board - did not participate in the decision.
The race still could hinge on as many as 1,600 improperly rejected absentee ballots that have yet to be counted. The court extended the deadline for counties to sort those ballots, giving officials until Jan. 2 to deliver them to Secretary of State Mark Ritchie. His office has until Jan. 4 to count the ballots, which will be wrapped into the recount.
The campaigns will be allowed to challenge the official count during that process, and the Canvassing Board will rule on the challenges.
Coleman led Franken by 215 votes out of about 2.9 million cast on Election Day, well within the threshold for an automatic recount under state law.