State's high court tosses GOP vote case

The state Supreme Court ruling clears the way for the canvassing board to order a gubernatorial recount.

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Lawyers for the Emmer campaign listen to Mark Dayton's lawyer, Marc Elias, challenge their argument before the state Supreme Court Monday afternoon.

Photo: Jefff Wheeler, Star Tribune

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Republicans' latest hopes in the disputed governor's race were dashed Monday when the Minnesota Supreme Court summarily rejected their argument that election officials should be required to reconcile the number of ballots and voter signatures.

After 45 minutes of oral arguments, the justices deliberated less than two hours before rejecting the petition brought by Republican candidate Tom Emmer and the state GOP. That will allow the state canvassing board to meet as planned Tuesday morning to certify a final vote tally and call for a recount.

After several minor adjustments, DFLer Mark Dayton now leads Emmer unofficially by 8,770 votes. That margin remains less than one-half of one percentage point and triggers an automatic recount of the 2.1 million ballots cast in the race.

"Let the process continue, but let it continue on a timely basis," Dayton said before the ruling Monday. "My goodness, we had an election in 2000 where President Bush won Florida by less than 1/1,000th of 1 percent, and that matter was adjudicated and resolved by the United States Supreme Court on Dec. 12 so that he could take office in a timely fashion."

Republicans maintained that election officials in some of the state's largest counties violated election law by counting voter receipts instead of signatures, as called for in law. That count determines whether any "excess" ballots must be discarded.

"At the end of the day ... the number of votes should be the same as the number of voters," GOP attorney Diane Bratvold told the court. "The only way to determine that is to count the signatures on the voting register."

That argument drew some skepticism from the bench.

"It strikes me that the practical effect is you end up with the same number either way," said Justice Alan Page.

Justice G. Barry Anderson added: "At the end of the day, isn't that voter's receipt simply proof of the underlying signature?"

Dayton attorney Marc Elias, one of many veterans of the 2008 U.S. Senate recount who was in the courtroom Monday, said that the 30-year-old administrative rule was simply a clarification of outdated statute language.

"This rule appears on the books. It's published. It's not secret," Elias said.

In a brief filed Monday, attorneys for Emmer had said that if the court did not act "quickly," events might move to a legal contest that "may well drag out this election into the beginning of 2011."

But after making their case before the justices, Republicans appeared less certain. GOP attorney Tony Trimble would not say whether they planned to file a lawsuit. "We'll proceed with the administrative recount," he said. "Who knows what other issues might arise as these procedures move forward?"

Guy-Uriel Charles, a Duke University law professor who was at the University of Minnesota during the 2008 U.S. Senate recount, said he was not surprised by the high court's ruling.

"This is a 'Hail Mary,'" Charles said of the Republican argument, noting that he "would have been surprised if it had gone the other way."

But Charles said he did not fault Emmer's legal team for making its best case. "They've got to find something," he said. "Right now, at least as I can tell, they don't have anything."

Depending on the language and scope of the Supreme Court's opinion, Charles said, Republican options to resurrect their case for vote reconciliation elsewhere may be limited. "Do they have a creative way of getting into federal court [with it]? I don't think so," he said. While the court made its decision public quickly, its written opinion was not available Monday evening.

Richard Hasen, a Loyola Marymount law school professor, said there might be a way for Emmer to raise the argument later. "Obviously, Emmer would have liked a delay," Hasen said. "But it seems to me that if there are serious problems with the counting of the ballots, he can bring those up before the canvass[ing] board or on court review, should that be necessary."

Discarding ballots

On another point, several justices on Monday expressed frustration that election officials were not properly discarding extra ballots -- an issue not addressed in Emmer's petition.

"It seems difficult that we as a court should turn a blind eye to that," said Justice Christopher Dietzen.

Minnesota Solicitor General Alan Gilbert said election officials determined that the ballots were validly cast. "It really doesn't affect, in the grand scheme of things, the outcome of the election," he said.

Whenever a reconciliation of ballots and voters results in "excess ballots," state law requires that ballots be randomly discarded until the proper number is achieved.

Emmer attorneys noted in a brief filed Monday that some election officials have acknowledged that they did not discard small numbers of such excess ballots because they considered that "too drastic" a remedy.

Mike Kaszuba • 651-222-1673 Eric Roper • 612-673-1732

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    Monday November 22, 2010

    Tuesday: State Canvassing Board meets to examine final vote tallies and order a recount, if needed.

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