FRIDAY NIGHT UPDATE: Dayton's lead stands, Emmer wants answers
By Don Davis
State Capitol Bureau
ST. PAUL -- A recount that ended Friday night did not deliver Tom Emmer the votes he needs to win Minnesota's governorship, but he is not giving up until he gets a few more answers.
Depending on those answers, he could take the election to court.
When Hennepin County election officials ended their work Friday night, the five-day recount of all 2.1 million ballots cast on Nov. 2 wrapped up with Democrat Mark Dayton leading by about the same as when it started: roughly 9,000 votes. But work continues today as Emmer and Dayton's campaigns begin examining ballots Emmer representatives challenged.
"I am not currently planning an election (court) contest," Emmer told reporters during a brief Friday morning news conference at state Republican Party headquarters.
He and former Minnesota Chief Justice Eric Magnuson, one of Emmer's attorneys, said a final lawsuit decision cannot come until they get more questions answered. Prime among those answers is why the Minnesota Supreme Court last month ruled against them a case demanding that the number of ballots and number of voters be reconciled before the statewide recount. Republicans think more ballots were cast than there were voters, a possible basis for a lawsuit.
The court ruled within hours of oral arguments that it would not order the reconciliation process, but said the reasoning behind the opinion would come later.
Emmer, a state representative from Delano, told reporters that he expects most ballot challenges his team issued during this week's recount to be withdrawn.
Emmer's team has challenged more than 3,500 ballots, not nearly enough to overcome the 9,000-vote deficit.
Challenges may be made by representatives of either candidate while election officials hand-count each of the 2.1 million ballots cast in the Nov. 2 election. If an election official deems a challenge frivolous, meaning it appears to be a legitimate vote, the ballot is counted.
The board on Friday decided to order about 30 counties where "frivolous" challenges have been lodged to make copies of those ballots and send them to the board early next week. The board will decide later whether to look over those ballots, but the four jurists and Secretary of State Mark Ritchie who sit on the board next week must determine voters' intent for 1,000 legitimately challenged ballots.
Dayton's recount team has withdrawn its frivolous challenges and Magnuson said Emmer's legal team is going through ballots and removing many challenges, too.
Among those that Magnuson said he expects to withdraw are 422 from Renville County.
Renville County Auditor Larry Jacobs, who braved a snow storm to deliver the questioned ballots to Ritchie's office, told the canvassing board that the Emmer representative challenged the ballots by claiming write-in votes were marks that could identify the voter. It is illegal for a voter to place identifying marks on a ballot.
Jacobs said that most of the write-in votes came in a school election in which three candidates needed to be elected and only one name was on the ballot. That meant that two other candidates' names would have to be written in.
Magnuson said the Renville Emmer representative was "overzealous."
The former chief justice was center of attention for much of the two-hour canvassing board meeting, especially when board member and current Supreme Court Justice Paul Anderson grilled him and fellow Emmer attorney Tony Trimble.
"We are dealing with something that is one of the most fundamental rights in our society," Anderson said about voting.
Anderson told Magnuson that it appears the Emmer campaign has been making frivolous challenges, and legal ethics do not allow attorneys to take frivolous actions.
"I am well aware of my ethical obligations," Magnuson replied.
As he was ending his interrogation, Anderson reminded Emmer's attorneys: "You're on the line."
The justice hinted that Magnuson, his former boss, is looking toward to a court challenge.
"We want to know the facts before we make a decision," Magnuson said.
Magnuson and Dayton attorney Marc Elias agreed to meet at the Hennepin County recount site today so the Emmer legal team can go through frivolous ballot challenges and withdraw any they think the canvassing board need not examine. Emmer attorneys will go through ballots from about 30 counties to winnow out ones that they feel should not have been challenged.
Next week, the board is scheduled to examine about 1,000 challenged ballots and could decide to look over frivolously challenged ones, too. The board is to declare a winner in the governor race by Dec. 14.
If Emmer opts to take the election to court, it could stretch the contest for weeks or months. However, he said today, his goal is to get a new governor sworn in on Jan. 3.
Stevens County's recounted vote totals for governor helped Republican Tom Emmer but just slightly.
Stevens County Auditor/Treasurer Neil Wiese isn't convinced the new totals in Stevens County likely differ from those on election night.
Emmer's Stevens County vote total remained at 1,942 while Dayton saw his vote total fall by five votes to 1,927.
County election judges Nancy Sparby and Gloria Viratyosin joined Lori Boots from the Auditor/Treasurer's office for the recount in Madison on Monday. Stevens, Lac qui Parle and Yellow Medicine conducted their recounts in the same location.
Wiese said that recounting procedures from the State of Minnesota are most likely the cause of the lower vote total for Dayton in Stevens County. Ballots are counted in groups of 25. While a pile can be recounted if a mistake is suspected, the entire pile of ballots can't be recounted. As such, if a mistake is made and not caught immediately, it can't be found in a total recount, he said.
"I find it unlikely that there were five fewer votes but that's (the state's) process," Wiese said.
Don Davis reports for Forum Communications Co. The Morris Sun Tribune contributed to this story.