2010 State Canvassing Board
Tom Emmer and Mark Dayton
2010 State Canvassing Board
Emmer attorney Eric Magnuson
ST. PAUL, Minn. -- The state canvassing board Tuesday formally scheduled the recount in the Minnesota governor's election and three legislative races for Monday, Nov. 29th. That routine decision then led to hours of haggling over the ground rules for the count.
Democrat Mark Dayton leads Republican Tom Emmer by 8,770 votes, roughly one half of one percent of the total vote count, which is the threshold for triggering an automatic recount. That hand count of 2.2 million ballots will be done at 86 locations across the state, but the canvassing board will rule on ballot disputes, known as challenges.
The board spent the bulk of its time Tuesday debating a change in the rules proposed by the Emmer campaign, which will result in more ballot challenges going to the state board rather than being settled by local elections officials.
Challenges are attempts by a campaign to disqualify the other side's ballots based on unclear voter intent, or over voting --filling in more than one oval in the governor's race. Ballots can also be tossed if voters write their names on them, an electoral taboo that dates to the era when people were paid to vote and marked their ballots as proof.
The five-member panel includes Supreme Court Justices Paul Anderson and David Stras, plus District Judges Gregg Johnson of Ramsey County and Denise Reilly of Hennepin County. Secretary of State Mark Ritchie, a veteran of the 2008 U.S. Senate recount, rounds out the group.
First Controversy of the recount
The board started with a controversial request by the Emmer campaign to strip local elections officials of their power to block frivolous challenges. The proposed rules by the state's elections director, Gary Poser, would have allowed local officials at the recount tables to make discretionary calls about which challenges are frivolous.
Emmer attorney Eric Magnuson, a former chief justice of the state supreme court and a member of the 2008 canvassing board, asserted that handling those questions centrally at the canvassing board level would result in a more uniform standard.
"All we're asking is that there be some record of the challenge," Magnuson told the board, "That it not be conclusively determined by the table official, so that you are deprived of the opportunity to rule on whether the challenge is frivolous."
Secretary of State Mark Ritchie warned that Magnuson's motion was an effort to let campaign lawyers have final say at the recount tables across the state, potentially flooding the canvassing board with thousands of challenges.
"You're arguing that the lawyers should have the ultimate trump in this decision," Ritchie said, "We had that the last time and it was a disaster."
He pointed out that it took the canvassing board four days to review one thousand challenges in 2008, and that was after the campaigns voluntarily withdrew 5,600 frivolous challenges.
"To do 6,000 ballots would take about six weeks. We start on December 7th, so take your six weeks out from there to finish."
Ritchie also said unlimited challenges would add burdens to local elections officials, who are required to duplicate the ballots and secure them as they are moved to Saint Paul for the canvassing board.
"Sometimes following the law is inconvenient, and expensive," Magnuson responded.
Justice Anderson said he was inclined to agree with Magnuson that the state board should get a chance to see every ballot disputed at the local level, even those deemed frivolous. He worried the Emmer campaign would take the board to court, because state law is ambiguous.
"Then we got to do the recount over again," Anderson said, "If you want to talk about costs! That's cost. Two recounts."
The board decided to allow a subset of "frivolous challenges" to be set aside by local officials, apart from other challenges considered more legitimate. The change could stretch out the review process considerably, because challenges normally weeded out by local officials will be sent to the state board.
Judge Reilly said she wanted to make sure the tracking of those ballots made it clear which campaign issued the frivolous challenge. She became deeply immersed in election laws in 2009, when she served on the special three-judge panel that heard former Senator Norm Coleman's election contest trial.
Magnuson wasn't completely happy with the compromise, because he wanted to those frivolous challenges to treated exactly the same way other challenged ballots.
"At the end of the day you have to look at every challenged ballot, and decide whether the challenge is valid, not frivolous, but valid," he told the board.
After the meeting he said he was glad the board recognized the need to keep those possibly frivolous challenges in the hopper.
"The whole notion that some challenged ballots could be lost from sight forever was really bothersome, and I think the canvassing board understood that."
In 2008 ballots with stray marks, or names such as "Mickey Mouse" written in as write-in candidates, were challenged by campaigns under the far-fetched notion the voters were trying to identify themselves.
As a result 6,600 challenges were sent to to the canvassing board, and only 1,000 were deemed serious challenges. The campaigns, in the interest of moving the process along, agreed to withdraw the majority of those frivolous disputes.
Ritchie's staff, in a public administrative rule making process, tried to prevent a repeat by granting local election officials more power to block frivolous challenges. State law also was changed to make it clear that names written inside the write-in slots on ballots can no longer be the basis of an "identifying mark" challenge.
Supreme Court rejects Emmer bid
The Supreme Court Monday turned down a request by the Emmer campaign for a new head count of voters in all 4,136 precincts in the state. The process, known as reconciliation, normally happens at the precincts after the polls close for the day.
Election workers count the number of voters by adding up the voter receipts, the slips of paper given to people when they sign the polling place roster. Voters hand those slips to the judges to get their blank ballots.
Reconciliation has been done that way since 1982, when the Secretary of State's office created administrative rules to fill in the blanks in outdated laws. The Emmer campaign asserted that state law trumped those rules.
The Emmer campaign argued that the law calls for counting signatures on the voter rosters to get a true count of voters. Elections directors have said that's more time consuming and ultimately less accurate.
In cases in which the number of ballots exceeds the number of voters, the remedy under state law is to randomly remove ballots from the precinct's total and nullify those ballots. The end game for the Emmer campaign was to remove enough ballots to erase Dayton's lead.
During oral arguments Monday several justices pointed out that the number of receipts should be the same as the number of signatures, because a voter can't get a receipt without first signing the roster.
The Emmer campaign pointed to cases in Ramsey and Hennepin Counties in which the totals didn't reconcile, according to Republican elections judges who submitted affidavits. Ramsey County's own canvassing process showed that three precincts had a combined five more ballots than voters.
The High Court deliberated only two hours before denying the Emmer petition, citing the need to keep the recount on schedule. The detailed reasoning behind that ruling won't be known until the court's full opinion is released.
Magnuson, in the canvassing board meeting Tuesday, said the receipts-versus-rosters issue hasn't ended for the Emmer campaign. He asked the canvassing board to order a reconciliation, saying that only votes attached to actual signatures can be considered lawfully cast votes.
"If we're going to certify a final vote, you need to do that based on signatures on the rosters," Magnuson said, "All we're asking is to ask local officials that they need to reconcile those vote totals before starting their recounts."
Judge Johnson, a member of the canvassing board, said he was concerned about getting into a conflict with the ruling of the Supreme Court if they were to go along with a reconciliation. Ritchie added that it could create confusion and delay involving the other races, which aren't subject to a recount.
Justice Anderson, however, said, "I want us to get this right. I don't want to parse this out unnecessarily."
Magnuson said he wanted the issue raised and dealt with prior to the recount, on the assumption it would be easier to deal with discrepancies in the vote counts now rather than after the hand count.
Despite Anderson's uneasiness, the other board members reached a consensus that it's not within the scope of their authority to order a reconciliation at this point in the process.
Dayton Attorney Marc Elias told reporters Monday he's confident the Dayton will be certified as the winner by the middle of December and sworn in January 3rd. He said he can't think of a precedent in the nation of a candidate overcoming an 8,770 machine vote deficit during the hand recount.
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