Recount is done; board lets Emmer review frivolous challenges

Tom Emmer
Republican Tom Emmer said at a press conference on Friday, Dec. 3, 2010, that he expects his campaign will withdraw "a great deal" of challenged ballots in the recount for governor.
MPR Photo/Jeffrey Thompson

The manual review of ballots in the Minnesota governor's race has concluded. Hennepin County wrapped up its recount at about 5 p.m. Friday, joining the other 86 counties that finished their hand tallies earlier in the week.

With 99.99 percent of the votes recounted, Democrat Mark Dayton retains an 8,715-vote lead over Republican Tom Emmer, according to the Secretary of State's office.

Meanwhile, ballot challenges called frivolous will get additional scrutiny from lawyers in the Minnesota governor's recount. That word comes Friday from the State Canvassing Board, even as it becomes clear Republican Tom Emmer can't overcome Democrat Mark Dayton's lead. The board instructed county officials to allow inspections of almost 3,000 Emmer vote challenges.

The extra step won't change the outcome; Dayton's lead is too large for Emmer to overcome -- even if all challenges go his way.

Instead, Emmer attorney Eric Magnuson said the final outcome of the recount may serve only as an indicator as to whether his client will file a lawsuit challenging the outcome of the race.

Emmer attorney Magnuson
Eric Magnuson, attorney for Republican Tom Emmer, addressed the State Canvassing Board in St. Paul, Minn., on November 23, 2010.
MPR Photo/Nikki Tundel

"We want to know the facts before we make decisions," Magnuson said at the Canvassing Board meeting. "We're electing a governor. That doesn't seem to be too unreasonable."

Magnuson appeared before the five-member board to urge its members to require local elections officials to make copies of ballots that the Emmer campaign challenged during the recount. Local elections officials deemed 2,845 of those ballot challenges frivolous.

But Magnuson said the canvassing board, not local elections officials, should be the final authority on the issue. The board, worried about a possible lawsuit that could slow down the declaration of an eventual winner, ordered local elections to make copies of the ballots.

Emmer's attorneys will start reviewing 2,113 challenged ballots in Hennepin County Saturday morning at the Hennepin County Government Center.

Before it issued its decision, the board also reviewed some of the ballots in question. Many were clear votes for Dayton.

"That borders on ludicrous," Ramsey County Judge Gregg Johnson said of one frivolous challenge.

"If you give the campaign a chance," Magnuson told the board, "we'll take these off of your plate."

Ritchie, Anderson
During the Minnesota State Canvassing Board meeting on at the State Capitol Building in St. Paul, Minn., on November 22, 2010, Secretary of State Mark Ritchie (right) and Supreme Court Associate Justice Paul H. Anderson discuss the issue of "frivolous" ballots in regards to the recount in the gubernatorial race between Democrat Mark Dayton and Republican Tom Emmer.
MPR Photo/Nikki Tundel

Magnuson told the canvassing board that the Emmer side plans to withdraw a large number of those challenges before the board is scheduled to meet again on Wednesday. The board hasn't decided whether it will review those ballots, but the fear of a lawsuit could prompt it to do so.

State Supreme Court Justice Paul Anderson told Magnuson and Emmer attorney Tony Trimble that they could be violating the lawyers' code of professional conduct if they present any frivolous ballots to the board.

"You're on the line here," Anderson told the two lawyers.

Dayton's campaign said on Thursday that it has retracted 35 frivolous challenges it made. Dayton attorney Marc Elias said his biggest concern is that the process continues to drag on. He said he wants to see the State Canvassing Board declare a winner in the race on Dec. 14.

A big question is whether Emmer continues to push a legal challenge. On Friday morning, Emmer left open the possibility of a lawsuit, saying he has no plans to contest the election in court "at this time."

Emmer said he's waiting for the state Supreme Court to issue a written ruling on a petition his campaign filed, over the difference between the number of ballots and number of people who signed in on Election Day. He also said questions remain about the total number of legally cast ballots.

"I've been clear from the beginning that the integrity of this election hinges on the principle of one person, one vote," Emmer said during the news conference held at state Republican Party headquarters.

Emmer acknowledged there's no way to overcome Dayton's lead through challenged ballots, and said many of his campaign's challenges will be withdrawn before next week's Canvassing Board meeting.

"It seems like the mechanical process [of the election] has worked fairly well," Emmer said.

But Emmer said he wanted to make sure there were no widespread irregularities in the election.

Last month, his campaign asked the state Supreme Court to force county election officials to reconcile the number of ballots cast with the signatures of people as they signed in to vote. The court denied the petition, but has yet to issue a written explanation of their ruling.

"We must know what the Supreme Court's reasoning is," Emmer said.

In addition, Emmer again questioned whether all the ballots in the governor's race were legally cast. As he did during an interview on MPR's Morning Edition on Nov. 23, Emmer argued that the number of ballots cast should match up with the state voter registration database.

The database is supposed to be updated later this month, but election officials said the update will likely be delayed because of the recount. They also have said the database was never intended to be a perfect reflection of the number of people who voted in the election.

Gary Poser with the Secretary of State's office said elections officials in several counties have asked for an extension to provide the updated voter information. He said there is no deadline as to when they have to provide that information to the state.

(MPR reporter Mark Zdechlik and the Associated Press contributed to this report.)

Your support matters.

You make MPR News possible. Individual donations are behind the clarity in coverage from our reporters across the state, stories that connect us, and conversations that provide perspectives. Help ensure MPR remains a resource that brings Minnesotans together.