Former Coleman attorney, law experts: Emmer has steep hill to climb

Ballot counters in Ramsey County
Ballot counters sat in between representatives from the Coleman and Franken campaigns at the Ramsey County recount location in St. Paul, MN November 20, 2008
MPR Photo/Caroline Yang

Republican Tom Emmer will have a hard time finding enough votes to overcome Democrat Mark Dayton's lead in the governor's race, recount attorneys and election law experts said Thursday.

Emmer trails Dayton by 8,774 votes, but there would have to be widespread, systematic errors for Emmer to overcome the deficit either during the certification process or a recount, said Guy Charles, a law professor at Duke University.

"That's a significant mathematical shift that would require a fair number of systematic errors," Charles told MPR's Midmorning.

There are several ways the vote totals could change at various steps in the process. First, the numbers are expected to fluctuate between now and Nov. 23, when the state Canvassing Board meets to certify the results.

Then, during the recount, vote numbers could fluctuate as election officials examine ballots. Some of those ballots' validity might be challenged.

Another area Emmer's campaign might look for votes is in rejected absentee ballots, which The Associated Press reported Thursday number about 3,000.

But Charles and the other guests on MPR's Midmorning said it's not likely vote totals will shift that much.

"Nine thousand is a mighty steep hill to climb, and I think the Emmer folks know it," said Fritz Knaak, one of the attorneys representing Norm Coleman's campaign in the 2008 Senate recount.

State GOP Chairman Tony Sutton said Wednesday that party officials will "overturn every stone" looking for votes. He said that will include looking into possibilities ranging from fraud to incompetence.

Raleigh Levine, a professor at William Mitchell College of Law, said there will likely be a variety of arguments coming from the Dayton and Emmer campaigns throughout the process.

But Levine said when it comes to errors in tabulating the votes, Minnesota's elections system in the past has proven not be susceptible to major problems.

"The voting machines have been pretty accurate," Levine said. "It's quite difficult to flip a result."

On the other hand, human error is always at play. As election judges report their results, numbers can be transcribed wrong and there can be mistakes in the arithmetic.

Knaak and Brian Rice, an attorney who works with the DFL Senate Caucus, agreed that the errors are almost always inadvertent and have become part of the process.

"The numbers will change to some degree, and it may be that there might even be an error that we call egregious," Rice said. "Generally what happens is these errors end up offsetting each other."

Knaak said he will be surprised if the recount process itself goes past mid-December, noting that election officials know how everything works now.

"I'm expecting this to move along really quite quickly," Knaak said.

(MPR host Kerri Miller contributed to this report.)