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Length of likely recount depends on GOP's legal plans

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Tom Emmer
Republican Tom Emmer laughs during a news conference Tuesday, Nov. 9, 2010, in St. Paul, Minn. Emmer is declining to say whether he'll contest the result of the Minnesota governor's race in court if he winds up losing a recount.
Jim Mone/AP

How long will the likely gubernatorial race recount last? 

Not as long as the 2008 Senatorial recount, political experts say, but it could very well stretch into next year if Republican Tom Emmer and the Minnesota GOP decide to take their case to court.

Democrat Mark Dayton has an unofficial lead of more than 8,700 votes over Emmer.

Secretary of State Mark Ritchie laid out a recount time line that would certify a winner of the governor's race by December 14. If that sounds optimistic, it's because you're probably remembering the last statewide recount that dragged on from November 2008 to June of 2009.

Every legal observer MPR News contacted for this report said they expected Dayton would come out of a recount retaining a several thousand vote lead. 

Even so, William Mitchell College of Law Professor Raleigh Levine thinks it's likely Emmer will file a lawsuit challenging the results if he loses in a likely recount.

"There are lots of good reasons to file an election contest suit even if the Republicans are dead sure that at the end of that suit, Dayton will be seated," Levine said.

Stack of ballots
An employee picks up a stack of ballots to be logged in and sealed after they were delivered from the city Brooklyn Center to the Hennepin County Government Center, Friday, Nov. 5, 2010, in Minneapolis, where the county's ballots will be guarded until the close gubernatorial election between Democrat Mark Dayton and Republican Tom Emmer is resolved.
Jim Mone/AP

Because, Levine notes, until a court puts any legal challenge to rest, Republicans would retain the governor's office. That would give the Minnesota GOP control of the executive and Legislative branches.

"That's political rather than legal, but ... it's certainly not unheard of for the courts to be used as pawns in political maneuvering," he said.

Emmer insists he hasn't made a decision about taking legal action, but in a sign he may be considering his options, the Republicans have hired former Minnesota Chief Justice Eric Magnuson to handle recount litigation.

But former Republican state Sen. Fritz Knaak, who served as the lead attorney for Republican Sen. Norm Coleman's recount battle in 2008-2009, thinks a lawsuit is unlikely. Knaak said barring some major revelation of wrongdoing, turning around the numbers in favor of Emmer would be highly improbable.

"The recount will have to show some kind of anomaly, some kind of serious problems somewhere -- systemic," he said. "The likelihood of that is very remote."

If Emmer decides to take the recount battle to court, many legal experts agree he could keep Republican Gov. Tim Pawlenty in office and Dayton out, at least for a while. 

If a contest is filed, it must be submitted to the Chief Justice of the Minnesota Supreme Court within seven days of the certification of the recount, who would then appoint a three-judge panel, said University of Minnesota Law School Professor Fred Morrison. According to the law, the trial must began as soon as possible and no later than 20 days after the contest is filed. 

That would mean that the trial might not begin until well into January, past the third of the month when the new governor is scheduled to be sworn in.

It took the judicial panel in the U.S. Senate court challenge more than three months to issue a ruling. It was another two-and-a-half months before the Minnesota Supreme Court upheld the three-judge panel's decision that Democrat Al Franken defeated Coleman.

Morrison says if the Emmer side moves the recount to court, he does not think it would drag out nearly as long as the Senate battle did. 

"That was the first serious statewide election challenge in 40 years," Morrison said. "Now we've got two in a row. I think they know how they work."

Morrison and other legal experts say Dayton could petition the Minnesota Supreme Count to order an an election certificate be awarded to him pending the outcome of litigation. But Morrison said, judging from how the high court handled a 1962 gubernatorial recount, it's not likely to issue such an order.