The State Canvassing Board is scheduled to meet Wednesday to review the challenged ballots in Minnesota's gubernatorial recount.
The unofficial results show Democrat Mark Dayton with a large enough lead to win, about 8,700 votes, but the board will move forward with the count to determine the final margin.
Two weeks ago, the Minnesota Supreme Court quickly denied a petition by the Emmer campaign that would require local elections officials to match up the number of ballots with the number of voter signatures.
On Tuesday, the court gave its reasoning behind the decision in an 18-page opinion released Tuesday.
The unanimous ruling was written anonymously by several judges. The opinion said Emmer's legal reasoning was based on outdated and ambiguous law. It said noting in the law prevents elections officials from matching the number of ballots cast with voter receipts.
Emmer had argued that law required them to match the ballots with actual voter signatures.
Emmer said the opinion would be one factor in whether he will pursue a legal challenge to the election. On Saturday, he said he wanted to see whether the court gave him an option of pursuing the issue after the recount.
It didn't, and now Emmer has fewer legal options once the recount is done.
"It's not a question of If Mark Dayton is going to be governor but only a question of when. And that when still resides with Tom Emmer," said Ken Martin, Mark Dayton's recount director. He said the ruling showed elections officials acted appropriately across the state.
"The options are really running out for Tom Emmer and it's now time for the Minnesota Republicans and particularly the newly elected legislative leaders to start figuring out how they should start working with Mark Dayton," Martin added. "It's pretty apparent that he's going to be the next governor of the state of Minnesota."
The canvassing board is expected to review as many as 200 ballots Wednesday. Emmer was unavailable to comment on Tuesday.
Minnesota Republican Party Chair Tony Sutton said it's too soon to say whether Emmer would file a lawsuit challenging the election.
He also said on WCCO Radio that Emmer and the Republican Party shouldn't be viewed as dragging out the race.
"We don't set this calendar. The state of Minnesota sets the calendar for the recount," Sutton said. "We have tried through this process to expedite things which is why we were very aggressive in challenging ballots but equally aggressive in making sure that we didn't bring anything to the canvassing board to deliberately delay the process by bringing frivolous challenges to the canvassing board."
On Tuesday, attorneys for Emmer withdrew the vast majority of challenges to ballots they made last week in the recount.
The Secretary of State's office says the State Canvassing board now has just 181 ballots to review, 91 from Democrat Mark Dayton's side, 90 from Emmer's side. Emmer withdrew 671 challenges Tuesday, and Dayton pulled back 88.
There are fewer than 30 other ballots still contested by Emmer, even though local officials called the challenges frivolous. The board has not yet decided whether it will look at those.
The Canvassing Board is scheduled to begin examining challenged ballots on Wednesday, with a goal of certifying the results of the recount next week. The board has many fewer challenged ballots to review than it did during the U.S. Senate recount in 2008.
An election contest can be filed in court up to seven days after that.