Emmer withdraws nearly all 'frivolous' ballot challenges

Challenged ballot
Reason for challenge: Identifying mark
MPR Photo/Nikki Tundel

Republican Tom Emmer's attorneys pulled back almost 2,600 ballot challenges in the undecided governor's race Saturday, a day after a statewide recount failed to dent Democrat Mark Dayton's 8,770-vote lead.

Former state Supreme Court Chief Justice Eric Magnuson and other Emmer lawyers huddled with Dayton's attorneys at conference tables in the county government center in Minneapolis. They inspected both sides of thousands of ballots challenged by Emmer partisans during a five-day recount that ended Friday. Election officials had tagged the challenges as "frivolous."

On review, Emmer's attorneys almost always agreed - except for 24 challenges they kept after about six hours of checking.

"In the end, I think we rescued some absolutely rock-solid, legitimate challenges," Magnuson said afterward.

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The legal attention focused on the state's most populous county because the bulk of roughly 3,000 frivolous challenges statewide were lodged there. Emmer's attorneys got permission from the state canvassing board to give those challenges another look so they could withdraw many of them before the board rules on ballot challenges next week.

The frivolous challenges come on top of more than 900 challenges considered legitimate by election officials. In both categories, most came from Emmer's side.

Dayton attorney Charlie Nauen said he doesn't expect the challenges to keep the canvassing board from certifying a winner on Dec. 14.

"It's good to demonstrate that most of these challenges - 99 percent plus - were frivolous," he said.

Dayton withdrew his frivolous challenges statewide - less than 50 - on Thursday.

Even if all the challenged ballots go Emmer's way, there aren't enough to make up his vote deficit.

But he hasn't ruled out a lawsuit. The canvassing board's stance on challenges is expected to play into his decision on whether to pursue litigation and on what grounds. The board is scheduled to go through the challenges starting Wednesday.

Emmer told GOP state central committee delegates in Bloomington that the race isn't over.

"We're not going away," he said. "We're sticking around."

Magnuson said Emmer's legal team will review copies of ballot challenges deemed frivolous from the rest of the state's counties on Monday. They decided to do the Hennepin County review at the government center with the original ballots because it was more efficient than having copies made.

County election workers hauled in boxes of ballots, broke the seals, pulled out envelopes of ballots marked as frivolous challenges and showed them to the attorneys.

"Thank you. Withdrawn. Thank you. Withdrawn," Magnuson said as he examined ballots flipped by an election clerk.

At one point, Magnuson discovered a write-in vote for himself for a Supreme Court seat and joked that he wouldn't withdraw the challenge. But he did.

He and Dayton attorney David Lillehaug chuckled over a ballot where the voter had written in "Lizard People" on several lines, but not in the governor's race. In 2008, Magnuson served on the canvassing board that rejected a vote for Democrat Al Franken because the voter had also written in "Lizard People" in the U.S. Senate race between Franken and Republican Norm Coleman.

This time, however, the vote was clearly for Dayton, and Magnuson withdrew the challenge.

(MPR's Tom Scheck contributed to this report)