Dayton lawyers question Pawlenty holdover status

The attorneys for Democrat Mark Dayton and Republican Tom Emmer are starting to take center stage in Minnesota's unresolved gubernatorial race.

Republicans have filed lawsuits against two local elections officials demanding that they turn over information related to the election. Democrats say they're looking into the possibility that the recount itself, and not any court challenges, would determine who takes office on January 3.


Democrats have been raising concerns since the day after the election that Emmer and the Republican Party are seeking to delay the outcome of the 2010 election. Now, it appears the Democrats are looking at legal options to ensure any possible "delay" doesn't happen.

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At a news conference Friday, Dayton's attorney, Charlie Nauen, told reporters that he thinks it's nearly impossible for Emmer to make up the nearly 8,800-vote difference.

He said he's looking into possible legal options to ensure that once the state canvassing board certifies the recount results on December 14, no lawsuit would prevent Dayton from being sworn in on time on January 3.

"The constitution says that the new governor, if you will, goes into office if that person has been chosen and qualified, and on December 14th, we'll see what the numbers are," Nauen said. "But if the numbers show that Mark Dayton has more votes, he's been chosen, certainly by the people, and he's qualified."

Nauen also told reporters that he doesn't think Republican Gov. Tim Pawlenty has the right to continue serving in office once his term expires on January 2.

Pawlenty has said he will continue serving until a successor is "chosen and qualified," an important term because it's written in the Minnesota Constitution.

Pawlenty and other Republicans interpret that to mean when an election certificate is issued in the race, but Nauen said that's not necessarily the case.

The key question is whether the constitutional definition of "chosen and qualified" trumps state law that forbids an election certificate from being issued until the courts settle any lawsuits, said William Mitchell College of Law Professor Raleigh Levine.

"I can't find any Minnesota cases in the brief search that I've done that gives a definitive definition for what it means to be "chosen and qualified," Levine said.

Levine notes that this was an issue in the 2008 U.S. Senate recount when Democrat Al Franken's attorneys unsuccessfully argued that an election certificate should be issued after the recount. Levine said that Supreme Court ruling signals that it could be an uphill battle for Dayton's side if they pursue it.


State Republican Party Chair Tony Sutton said Emmer's side is not focusing on the issue. Instead, he said they're working to ensure that they're prepared for the recount and a possible lawsuit. The Republican Party of Minnesota asked a judge to compel elections officials in Pine and St. Louis counties to expedite their data practices requests for voter and election information.

"We need to have this information to know if there are things that need to be brought up in a contest as well as planning for the recount," Sutton said. "It's absolutely related to that. We need to get that in a timely basis."

Sutton also declined to lay out specifics about alleged voting irregularities that he and Emmer have raised over the past two weeks. He said they'll present those matters if and when an election contest is filed. Democrats say Republican claims of voting irregularities are either overblown or unsubstantiated.