Counties say Tom Emmer's call for signature count is unwarranted.
Election officials unleashed a storm of sharp words and legal arguments Friday in filings aimed at blocking Republican Tom Emmer's request that state's highest court order the local officials to prove there were no more votes than voters on Election Night.
If the Supreme Court, which appears to be on a fast track to a decision, sides with Emmer, the recount process could slow and some votes could be tossed before an expected statewide recount. Should the court side with Democrat Mark Dayton, who holds an 8,755-vote lead, the state could order the recount on Tuesday.
Hennepin County election officials argued that being forced to undertake a count of voter signatures, as Republicans want, would "add confusion, delay, and uncertainty in the service of an exceedingly suspect goal of randomly removing properly cast ballots of fully eligible voters." Ramsey County officials called the GOP argument "fundamentally flawed" and based on "obsolete" information.
Dayton attorneys said that Republicans want to "change the rules after the game has been played" and that the GOP petition "should be dismissed on that ground alone."
Republican Party Chairman Tony Sutton said of the responses: "The fact of the matter is they're wrong....If you want to make sure that Minnesotans have confidence in the result, just follow the law."
The Minnesota Supreme Court has scheduled possible oral arguments "if necessary," for Monday afternoon.
Contention over law
At the heart of the disagreement between the counties and Emmer's campaign is whether election officials should have followed the letter of a law that requires election judges to count either "signed voter's certificates" or "names entered in the election register" and then match the number of signatures to the number of votes cast. An administrative rule adopted nearly 30 years ago allows election officials to count receipts instead. If there are excess votes, state statute stipulates that votes must be randomly pulled and discarded.
Ramsey County told the court that "certificates" were used in a bygone era, before Minnesota's statewide registration system, and that receipts are merely the modern equivalent.
The Emmer team says that local officials could make the required ballot check before they actually start counting ballots with "minimal time and effort."
As a backup to the court request, Eric Magnuson, a former Supreme Court chief justice who now is an attorney for Emmer, has asked the state canvassing board to request such a check either before or during the recount. The canvassing board is due to meet Tuesday to certify vote totals and order a gubernatorial recount.
The Dayton team added heft to its legal team on Friday, reassembling nearly the entire legal gang that led U.S. Sen. Al Franken to a 312-vote victory in Minnesota's 2008 U.S. Senate recount. Attorneys Marc Elias and Kevin Hamilton will join David Lillehaug and Charlie Nauen on the legal team.
Denise Cardinal, a Dayton spokeswoman, said that Emmer appears to be preparing for an extended legal challenge, so the Democrats felt they needed to prepare as well.
Emmer's team includes Magnuson, who was a member of the 2008 state canvassing board; former Supreme Court Justice Sam Hanson; Michael Toner, a Washington, D.C., attorney and former head of the Federal Elections Commission, and Tony Trimble, a longtime Minnesota Republican attorney.
The quest for a records check may not yield many votes for Emmer, who trails Dayton by 8,755 votes. Though Sutton contends that there could be thousands of "phantom votes" in the count, the state's county officials recorded only handfuls of excess votes that could be tossed.
In Hennepin County, Minnesota's largest, officials said they found only 22 excess ballots out of more than 450,000 voters. Ramsey County found five more ballots cast than recorded signatures. In Stearns County, officials found and discarded six excess ballots.
Hennepin and Ramsey did not discard excess ballots, arguing that miniscule discrepancies do not warrant such action. Hennepin County officials said removing ballots under those circumstances would be a "drastic remedy," while Ramsey officials said it would "disenfranchise a legitimate voter simply because" of human error.
In Hennepin County, auditor Jill Alverson told the court that "randomly disenfranchising eligible voters after the fact is a statutory remedy that should be used only in the narrowest of circumstances and then only after careful, transparent and deliberate study."