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In a move that could mean some votes will be tossed in the disputed governor's race, Republicans are asking the Minnesota Supreme Court to ensure there were not more votes than voters on Election Night.
The petition, filed Wednesday, contends that election judges in some precincts failed to properly match up the number of voters with votes cast, as required by law. It asks the court to order local officials to reconcile those numbers -- even at the risk of delaying a likely recount.
"Phantom votes have no place in the final count," said Minnesota Republican Party Chairman Tony Sutton. He acknowledged that he did not know the number of possible excess votes or the effect removing them might have on Democrat Mark Dayton's nearly 9,000-vote lead over Republican Tom Emmer.
Dayton recount manager Ken Martin said that Republicans simply want to forestall the inevitable -- the seating of "our next governor, Mark Dayton." The court action, Martin said, "is an attempt to delay this process."
Sutton offered no evidence of any excess votes in the current count, only the theory that there could be thousands of such votes across the state if precincts failed to reconcile their numbers.
The law provides what might be a chilling remedy in the event of excess votes: Officials must randomly select an equal number of votes from that precinct's stack and disqualify them. Such a culling could end up helping or hurting either of the gubernatorial candidates, or candidates in other close races.
"Let the chips fall where they may," Sutton said. "Frankly, it doesn't matter to us."
The state Canvassing Board is expected to meet Tuesday to order a recount in the governor's race. Republicans asked that process to be put on hold until their issue is settled.
"Whatever small amount of additional time might be needed to ensure compliance with the law will clearly be less than the time that will be required to address it after the fact," the Republicans said in their petition, filed on Emmer's behalf.
Although the Supreme Court can take months to deal with cases, they tend to handle election matters quickly, sometimes within days. That could mean, GOP attorney Tony Trimble said, the start of the recount could go on as scheduled.
Signatures vs. receipts
The material that the GOP gave the court included affidavits from election judges and observers, in which they claim that no one properly reconciled the number of people who signed into the polling roster with the number of votes that were cast in the precinct, as required by law.
Several election judges swore in affidavits that their precinct officials used voter receipts, rather than signatures, to check that their numbers squared.
Election officials in the state's two biggest counties said that judges are allowed to count receipts, and a state administrative rule also offers that option. But an election judges' guide on the secretary of state's website specifies that judges should "determine the number of voters by adding the signatures on the pre-registered roster and the signatures on the election day registration roster."
Hennepin County Elections Manager Rachel Smith said using receipts is faster and more efficient. Since each voter must get a receipt before he or she is given a ballot, counting receipts is essentially the equivalent of checking signatures.
"If the voter receipts are matching the total number of ballots, why would we make them go count 1,500 signatures?" Smith said. If the number of receipts did not match up with the number of ballots, she said, the judges then counted the signatures on the election roster.
Republicans noted in their petition that Ramsey County's instructions specify that judges may count either the signatures on the roster or the number of receipts.
Ramsey County Election Manager Joe Mansky said that he believes "all of our judges followed the law."
The Republicans' petition included affidavits from both Hennepin and Dakota county judges, as well as a poll challenger from Ramsey County, saying they didn't see what they considered a proper reconciliation.
Procedural electoral questions are familiar terrain for Republicans.
Sutton repeatedly raised a conservative group's 2009 complaint that the statewide voter registry had significantly thousands more votes cast than were voters in the 2008 race. Emmer signed on to that complaint, which was dismissed by the high court.
"This is a potential game- changer," Sutton said of the petition. "We want the law to be followed ... We want to have confidence the process is being followed."
Martin said that "our election process is clean, fair and working the right way." He noted that since the unofficial results were tallied, there has been little change in the count.
"In recount standards, this margin is a mountain this is going to be very tough for Tom Emmer to climb," Martin said.