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Franken staying out of court, for now

From NBC's Carrie Dann
Senate candidate Al Franken will not appeal a decision by the Minnesota State Canvassing Board, which today rejected the Democrat's request that rejected  absentee ballots be included in the race's hotly contested recount.

The canvassing board's decision was perceived as a blow to Franken, who trailed Republican incumbent Norm Coleman by just 283 votes Wednesday with about 80% of the recount completed. Some of the absentee ballots appear to have been improperly rejected due to administrative errors, and the Franken team hoped that -- when inspected -- the reconsidered ballots would yield votes to close Coleman's razor-tight advantage.

In announcing its decision this morning, canvassing board members emphasized that the Franken camp's request was not rejected on legal grounds, but because it is unclear if the board has the jurisdiction to mandate that the ballots be reexamined.

Estimates by the Franken camp and the Minnesota Secretary of State indicate that the number of rejected absentee ballots is at least 6000, and could be as high as 12,000.  The Democrat's team says that failing to count the small fraction of those ballots that were mistakenly discarded amounts to disenfranchisement. 

Democratic Majority Leader Harry Reid echoed that concern, calling the canvassing board's decision "cause for great concern" in a statement issued this afternoon.

The state canvassing board will meet again next week.  Many observers believe that the fate of the discarded ballots will eventually have to be determined through litigation.

Still, top Franken attorney Marc Elias said this afternoon that, although the campaign is "disappointed" with the board's ruling, the campaign won't be taking the issue to court at this time. Elias painted the board's hesitation as a sign that election officials want to use the proper channels to prevent legitimately cast votes from being unfairly thrown out.

"Whether it is at the county level, before the Canvass Board, before the courts, or before the United States Senate, we don't know yet," Elias said today. "But we remain confident these votes will be counted."