With a possible lawsuit looming, the state Canvassing Board on Tuesday certified the 8,770-vote lead of DFLer Mark Dayton over Republican Tom Emmer in the race for governor, and launched a recount.
Republicans tried, for the second day in a row, to make the pitch that local election judges should be made to reconcile the number of votes with voter signatures on rosters. But the board rejected that argument, as did the Minnesota Supreme Court a day earlier.
On Tuesday, though, the board was clearly concerned about the prospect of a GOP lawsuit should Emmer fail to gain enough votes from the recount to close the gap.
"Do we go through this whole process and then you ... bring another lawsuit?" Supreme Court Justice Paul Anderson, a canvassing board member, asked of Emmer's legal team. Looking at attorneys for both candidates, Anderson asked, "Is there anything else ... we need to do to get it right?"
Reacting to laughter in the room, Anderson said: "You know, you laugh a little bit ... . [But] this is a dead serious question by me. We love this state. We want to do right by this state."
The recount is scheduled to begin Monday, with local election officials completing their work by Dec. 7. Canvassing board members will review challenged ballots between Dec. 8 and 10, and then certify the results of the race on Dec. 14. Because the margin is less than one-half of 1 percent of votes cast, the cost of the recount will be borne by the state. Ritchie said there is no way yet to know what the cost will be.
The new governor is to take office Jan. 3, but seating him could be delayed by weeks or months if a lawsuit, called an election contest, is filed.
The thorniest issue on Tuesday was dealing with potentially frivolous challenges by the candidates.
Although local officials can reject ballot challenges they deem frivolous, the board will reserve the right to review those decisions. Recount officials will be instructed to keep six categories of ballots: votes for Dayton, votes for Emmer, votes for others, challenged Dayton ballots, challenged Emmer ballots, and the frivolous pile.
Ritchie said that despite the daylong hearing, the canvassing board had not yet decided whether all of the so-called frivolous challenges would ultimately come back to the board.
"This will be a decision that the board will make at some point in time," he said.
State rules adopted after the 2008 Senate race give local officials more discretion to reject challenges as frivolous, but Emmer attorney Eric Magnuson wanted the board to make those decisions.
Ritchie said the rule change was designed to prevent a repeat of the 2008 recount, when candidates challenged more than 6,000 ballots. Ritchie later said that the board sided with the decision of local officials "95 percent of the time."
But Anderson expressed "discomfort" over the board not having an opportunity to review challenges deemed frivolous by local election officials, especially if the recount decision later wound up in court.
At one point, Anderson pressed Magnuson for assurances that the GOP would not lodge frivolous challenges.
"We have been sternly admonished not to be frivolous and we take that seriously," Magnuson said. He later added: "Frivolous is in the eye of the beholder. ... What we really wanted to do today is make sure that one local election official's judgment wasn't unchallengeable."
Magnuson said that Emmer's legal team has not yet decided to file a legal challenge. They are awaiting a Supreme Court opinion in Monday's ruling, in which the court tossed out a GOP petition to require vote reconciliation.
Marc Elias, Dayton's lead attorney, said later, "We, right now, feel good about where things stand. Mark Dayton is leading by, frankly, an insurmountable margin."
Ritchie said that on the first day of the recount his office would release lists of votes for Emmer, votes for Dayton, votes for others, challenged votes by Dayton and challenged votes by Emmer. By next Thursday or Friday, he said, his office would also release the number of ballots that were ruled frivolous.
Pat Doyle •651-222-1210