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Senate recount possibilities include lawsuits

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I Voted
A voter in St. Paul.
MPR Photo/Tim Post

An automatic administrative recount, conducted by the Secretary of State, is provided by state law and is common in very close legislative races. 

But there's another state law that decided the last two close federal elections  in Minnesota. It sets  out a special kind of court case, called an election contest.

The most recent case was between DFLer David Minge and Republican Mark Kennedy in 2000, who ran against each other in the 2nd Congressional district. An earlier race between DFLer Collin Peterson and incumbent Republican U.S. Rep. Arlan Stangeland in the 7th District was decided in court in 1986.

The two sides will likely wait until the election results are certified by elections officials before one of them files a civil action in Ramsey County District Court.

State law requires that an election contest go to trial in just 20 days. In that time, a judge would appoint dozens, or even hundreds, of three-person teams of ballot inspectors, all over the state, to sort through the votes.

Each campaign would name one person to each team. Both parties will have to agree on a third neutral person for each team.  The teams will put aside the obvious votes and set aside disputed ballots for review by the court.

By law, the judge in the case would make a decision on the disputed ballots. But since  nearly all judges are political appointees, the two sides might ask for a panel of three judges to decide the case.   

If one side or the other does not like the outcome, they could ask the state Court of Appeals to act.   

The Coleman campaign announced last night that it had retained former U.S. Attorney Tom Heffelfinger to handle its legal work.  But Heffelfinger said this morning that he will not work on the recount effort, since he's already working on St. Paul's independent review of police actions during the Republican National Convention. 

Attorney David Lillehaug, a Democrat, is already working for the Franken campaign on the recount.

The Republicans' legal strategy is already at work. Last night, Republican operatives were sitting in a car with Nebraska plates in the parking lot outside the Ramsey County elections offices.

Elections workers said there had been Republican lookouts there all night and all day, and also in Washington County and in Anoka County. They were gone early Thursday morning.

The stakes here are nationwide, which means there will probably be money, lawyers and political operatives from all over the country heading this way.

The closest U.S. Senate race in U.S. history was in New Hampshire in 1974, during Watergate.  The polls closed with a 355-vote difference between Democrat John Durkin and Republican Louis Wyman. 

The state held another election 10 months later, after at least three recounts and a second campaign. Republican Wyman won, then lost, then again won the first election. Democratic challenger Durkin decided to appeal to the U.S. Senate. 

In 1974, Democrats in the Senate had a 60-vote majority, and still mulled over the election for 28 weeks. It ended almost a year later, when the two candidates decided to call it a draw and run a second election preceded by another six-week campaign.

Senate rules say the Senate itself is the ultimate election arbiter.

This election, there is a pitched battle going on for control of the Senate. A minority member has a slim lead in this election. The Franken campaign yesterday was asking people to come forward with stories of election irregularities. 

Minnesota law doesn't allow for any accounting of election irregularities in a recount.  But questions about the voting could be used to make Franken's case if the battle goes to the floor of the U.S. Senate.