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Emmer will ask Canvassing Board to square voter tallies

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Supreme Court recount hearing
Lawyers for the Emmer campaign listened to Mark Dayton's lawyer, Marc Elias, challenge their argument before the state Supreme Court Monday, Nov. 22, 2010. The court heard arguments about how the recount in the governor's race should proceed. Lawyers for the Emmer campaign, the Dayton campaign, and the Secretary of State's office all argued before the Supreme Court.
Jeff Wheeler/Pool/Star Tribune

Tom Emmer's campaign will move forward with a backup plan as the start of recount in the race for governor looms after the Minnesota Supreme Court handed his campaign a defeat Monday.

The court denied Emmer's petition to force local election officials to compare voter signatures with vote tallies on Election Day. 

Now, attorneys for Republican Tom Emmer are expected to ask the five member State Canvassing Board to do what the Supreme Court didn't -- require local elections officials to match up the number of ballots cast with the number of voters who signed in on Election Day. The canvassing board meets today.

In a lightning fast ruling, the court denied Emmer's petition, just two hours after hearing arguments in the case. The court didn't offer specifics on why it ruled the way it did. 

In the ruling, Chief Justice Lorie Gildea said specifics will come later, but that the court didn't want to impede the "election process." 

Throughout Monday's hour-long hearing, the five justices appeared skeptical of Emmer's argument. 

Justice Christopher Dietzen was one of several members of the court who suggested Emmer's legal team was splitting hairs by arguing an out-of-date statute should be applied in modern election times. Dietzen cited a affidavit from the Ramsey County Elections manager.

"At least as I read the affidavit of Mr. Mansky, he states that the term 'polling place roster' can be substituted for the term 'election register' and the term 'voter receipt' can be substituted for 'voter certificate,'" Dietzen said. "That seems plausible to me."

Emmer's campaign has argued that the court should follow the letter of the law. That means elections officials will be required to pull out ballots if they find more ballots cast than voters' signatures. 

State Republican Party attorney Tony Trimble said after the hearing that he thinks there are enough votes to give Emmer a shot of overtaking Dayton's unofficial lead of nearly 8,800 votes.

Dayton meets with legislators
DFL candidate for governor Mark Dayton speaks with members of the media after meeting with DFL legislative leaders Rep. Paul Thissen, left, and Sen. Tom Bakk.
MPR Photo/Tim Pugmire

"They're not small numbers," Trimble said. "If you're talking two to three votes per precinct, you're easily talking about 12,000 votes statewide and it could be much, much more than that."

Elections officials dispute that and say the numbers are tiny. Emmer's legal team has asked the State Canvassing Board to require local elections officials to square up the number of ballots with corresponding signatures when the recount starts on Nov. 29. 

Officials with Democrat Mark Dayton's team have argued Emmer just wants to slow the process down. 

State Republican Party Chair Tony Sutton says he strongly disagrees with the court's ruling and says the party will continue to work to ensure that Minnesota election law is followed. 

Earlier in the day, Mark Dayton was at the state Capitol meeting with DFL minority leaders. Dayton said he not presuming anything until the recount is settled, but he said he was struck by how strongly county election officials responded against the Emmer lawsuit.

"I don't see anything thus far that's been raised that would cause anyone to doubt the fundamental integrity of the election that at this point has Yvonne and myself ahead by 8,770 votes," he said. "So let the process continue, but let it continue on a timely basis."

While the justices appeared skeptical of Emmer's overall argument, two of them also appeared concerned that a few votes have been found without corresponding signatures. 

Elections officials say they believe they know the reason for that so they kept the ballots in the count, but Justice G. Barry Anderson said they may not have that authority.

"In acknowledged circumstances where there are overages, administrative officials have made the decision that those are de minimus and they're not going to take ballots out as the statute seems to require," Anderson said. "That seems to me to be in direct violation of the statutory language. I realize that that question may not be directly before us but shouldn't that be a matter of concern?"

Justices Paul Anderson and David Stras recused themselves from the case because they are on the State Canvassing Board that will oversee the recount.