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High court rejects Emmer ballot case

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By Don Davis

Forum State Capitol Bureau

ST. PAUL -- The Minnesota Supreme Court late Monday afternoon rejected a request by Republican governor candidate Tom Emmer that could have led to some ballot being not counted.

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Without further comment, Chief Justice Lorie Gildea wrote that the court denied the Emmer request.

While the arguments before the Supreme Court were mostly technical, they boiled down to whether election officials would be ordered to remove some ballots that already had been counted.

Democrat Mark Dayton leads Republican Emmer by 8,770 votes and a statewide recount is scheduled to be ordered Tuesday.

GOP lawyer Diane Bratvold told justices that if they acted right away on the Emmer request, there should be no delay in a recount, due to start statewide on Monday. If the decision did not come quickly, she added, it "may well drag out this election into the beginning of 2011" because Emmer could decide to challenge the recount in court.

The GOP says that election officials in each of the state's 4,136 voting precincts should have counted actual voter signatures and compared that number to the number of ballots cast. If there were more ballots than voters who signed in, state law requires that ballots be randomly removed to equal the number of extra votes in each precinct.

Precinct election officials, however, apparently generally used a different list of voters without signatures to compare with the number of ballots. That violates state law, Republicans argued, and the State Canvassing Board should work with local election officials to compare voter signatures to ballots.

Dayton's attorneys said the state long has done things the way they were handled on election day and everything was done properly.

"The laws of Minnesota must be followed by all election officials," Republicans argued in a document they filed with the Supreme Court Monday. "To hold otherwise would undermine the rule of law and the integrity of the electoral process."

Added the GOP document: "Neither the secretary of state nor the individual counties have authority to supersede the Legislature and ignore the requirements of a statue in that manner."

The attorney general's office, representing Secretary of State Mark Ritchie, said the Emmer-Republican legal team has not claimed that the election results are inaccurate and has not shown that the method of reconciling voters and ballots Emmer wants is more accurate than how it occurred.

Dayton attorney Marc Elias said that it should not matter whether signatures were counted or voters counted another way, as long as an actual vote count results.

Elias, who represented Al Franken in the 2008 Senate recount, said that Emmer and Republicans should have complained about the rule that does not require signatures to be counties before the election if they did not like it.

The State Canvassing Board is to meet Tuesday to receive vote totals from around the state. Emmer leads Dayton by 8,755 going into the meeting, close enough to require a statewide, state-funded recount of the 2.1 million ballots cast in the Nov. 2 election.

The recount would begin in each of Minnesota's 87 counties on Monday and continue for a few days until each vote is counted.

They the votes are recounted, observers from the Dayton and Emmer campaign will watch. If they disagree with election officials' decisions about what candidate should have received a particular ballot's vote, that ballot will be sent to the State Canvassing Board when it meets again next month. The state board will examine each challenged ballot to determine who, if anyone, gets the vote.

Don Davis reports for Forum Communications Co.

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