Slowly: Count, then challenge

  • Article by: RACHEL E. STASSEN-BERGER , Star Tribune
  • Updated: December 1, 2010 - 11:30 AM

GOP chair said the party's frequent challenges to ballots are simply an attempt to defend its interests.


Ramsey County election manager Joe Mansky, middle, talked with Dayton attorney Timothy O’Brien, right, and Emmer attorney Michael Toner as they went over challenged ballots. Below, part of the “hieroglyphics sheet” kept during the 2008 U.S. Senate recount by Eric Magnuson, then Minnesota Supreme Court chief justice. The sheet helped keep track of rulings by ballot judges.

Photo: Kyndell Harkness, Star Tribune

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When Ramsey County election manager Joe Mansky began the gubernatorial recount this week, he held up a sheet of scribbled "hieroglyphics."

It was an artifact from the 2008 U.S. Senate recount, designed to track which marks passed muster with ballot judges. "To the extent that we can use this to help us solve any really thorny issues, my intent is to do that," Mansky said.

The sheet was created by then-Minnesota Supreme Court Chief Justice Eric Magnuson when he served on the '08 recount Canvassing Board. He was so proud of the sheet that he had it framed under glass.

But now Magnuson is a lead attorney for Republican Tom Emmer in the disputed governor's race, and the sheet is proving little guide for Republicans disputing ballots in this recount. Ballots that would have been deemed valid by Justice Magnuson in 2008 are being aggressively challenged by attorney Magnuson's team this time.

"Certainly, some of the challenges seem to contradict what the Canvassing Board did two years ago," Mansky said Tuesday. By his analysis, only about 10 percent of all the early challenges levied by Emmer representatives in Ramsey County are solid, another third could be legitimately argued in front of the Canvassing Board and the rest will almost certainly be ruled out of order when the board examines them next week.

The Star Tribune requested an interview with Magnuson for this story, but instead was directed to Republican Party Chairman Tony Sutton. He said GOP observers had been told, "when in doubt, challenge it."

Sutton defended that stance.

"We're going to aggressively defend our interests," Sutton said. "We have a right under the law to do this. If in doubt, let our lawyers and the Canvassing Board take a look."

Before the recount, Emmer trailed DFLer Mark Dayton by nearly 9,000 votes. Since the recount began Monday, Dayton has lost 38 votes and Emmer has lost one, according to results posted by the secretary of state's office. As of Tuesday night, 69.9 percent of the ballots had been recounted.

Emmer's camp has challenged 597 ballots and Dayton's has challenged 143; those ballots are taken out of the mix and will be reviewed by the state Canvassing Board.

'Not Thanksgiving dinner'

In Hennepin County, elections manager Rachel Smith said, "we have seen increasing numbers of frivolous challenges from the Emmer side." Smith said that 907 challenges made Tuesday had been deemed frivolous by the end of Tuesday's recount.

Of those, 894 were made by Emmer representatives and 13 by Dayton representatives. When election officials deem a challenge frivolous, the ballot is not taken out of the count, but may be reviewed later by the Canvassing Board.

Smith noted a spike in frivolous challenges Tuesday afternoon and said Emmer's team rebuffed her request to reconsider some of them. Dealing with such frivolous challenges had added as many as nine hours of extra work in two days of recounting, she said.

Smith held up one ballot as an example. "There's one blackened oval in the governor's race," she said. "We are seeing this throughout our precincts. These are legitimately marked ballots. There's nothing there."

Both sides have been "very respectful," Smith said, but "this is a recount. This is not Thanksgiving dinner." Smith said Hennepin County will do "whatever it takes" to complete the recount by early next week, including working part of the weekend if necessary.

Sutton said Smith appeared "definitely hostile to our right to challenge."

In Washington County, Emmer officials changed their strategy on Tuesday. On Monday, Republican observers asserted that ballots that had no marked vote for either gubernatorial candidate implied a vote for Emmer. On Tuesday, Emmer representatives abandoned that practice, said Kevin Corbid, Washington's elections director.

In Ramsey County, Emmer attorney Michael Toner personally approved every challenge, even those Mansky suggested would be quickly shunted aside by the state Canvassing Board.

Still, in polite exchanges, Mansky and Toner did find some accord. "You agree with that, right?" Toner said at one point on Tuesday. Mansky looked at a ballot that appeared to have votes for two different gubernatorial candidates and replied: "I do, Michael."

Candidates keep their distance

The men who would be governor have kept away from the ballots that will decide their fate.

While Emmer has kept a low profile since Election Day, Sutton hinted Tuesday at a post-recount lawsuit.

"We think there are some legitimate issues" for a court to consider, Sutton said. An election trial could delay the next governor's seating beyond the scheduled Jan. 3 change in power.

Dayton, meanwhile, is preparing for the possibility that he will be governor. On Tuesday he traveled to Washington, D.C., for a Wednesday meeting of the Democratic Governors Association.

"Although Minnesota's election has not yet been decided, I am still delighted to be invited to meet with governors from around the country to learn about their initiatives in their respective states," Dayton said.

The trip is being funded by private sources, which have also ponied up to help with Dayton's recount fight.

"We have raised over a million dollars for this effort," Dayton recount manager Ken Martin said Tuesday.

But Martin said the fundraising isn't easy. "People spent a lot of money in the general election and they're tapped out," he said.

Sutton said Republicans have raised "quite a bit" for the recount, but would not say how much.

Mike Kaszuba, Pat Doyle and Kevin Giles contributed to this report.

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