With the recount hitting midweek and GOP candidate Tom Emmer still down thousands of votes, state Republican Party Chairman Tony Sutton has raised the prospect of moving the governor's race into the courtroom.
"We think there are some legitimate issues" that a court could address, Sutton said. "We're reviewing our options."
On the third day of the statewide recount, Emmer attorney Tony Trimble declined to say whether the candidate's legal team is laying the groundwork for a court challenge.
"You prepare for everything in life, but the facts are going to drive any decision we make," Trimble said.
A lawsuit could delay resolution of the governor's race for weeks or months, as it did in Minnesota's 2008 U.S. Senate race.
But an election law expert said the Emmer campaign is likely to face an uphill battle in court.
"If you can't demonstrate a number of questionable ballots that are equivalent to the margin of victory, it's a non-starter," said Ned Foley, a professor of election law at Ohio State University. "If the numbers aren't there, you can't win."
However, he said, "if your goal is to delay -- not win -- you could plead the case to eat up time and run out the clock," Foley said.
Sutton said the decision to contest a possible loss by Emmer will be made by the candidate. Emmer spokesman Carl Kuhl said "it will be his [Emmer's] call, but no determination has been made yet."
Meanwhile, Hennepin County, the state's most populous, remained the epicenter of acrimony in the recount. Emmer representatives squabbled Wednesday with election officials over ballot challenges and even the number of counting tables to be used.
Before the recount, Emmer trailed DFLer Mark Dayton by nearly 9,000 votes. Since the recount began Monday, Dayton has gained 17 votes, and Emmer has gained 14, according to results posted by the secretary of state's office. As of Wednesday night, 84 percent of the ballots had been recounted.
For the second straight day, tempers flared in the basement of Hennepin County Government Center over the hundreds of ballot challenges that election officials declared frivolous, a legal term for weak challenges.
Of Smith's complaint that frivolous challenges are slowing the recount, Trimble said, "she doesn't control the challengers."
The Dayton campaign said that of the 2,776 ballot challenges Emmer workers have filed, 98.2 percent have been declared frivolous. By contrast, 39 Dayton challenges have been ruled frivolous, according to the campaign.
In an attempt to speed things up Wednesday, Smith asked to add three or four counting tables to the 25 already set up. Trimble objected and said that if she did, the Emmer campaign would take the county to court. "They can't change the rules," Trimble said.
The state Republican Party also blasted Smith, accusing her of trying to "change the rules in the middle of game to advance the interests of Mark Dayton."
Smith dropped her request for tables. "Basically, we decided it's not worth the fight," she said. As for the GOP's accusation, Smith said, "We're doing the very best we can. I don't work for either one of the parties -- I work for the people of Hennepin County."
She said counters plan to work on Saturday and could finish then. Minneapolis completed its count Wednesday, as did Washington County. Dakota County expects to complete its work Thursday.
Dayton attorney David Lillihaug had no problem with additional counting tables. "I don't object to anything that'll get it done," he said.
Sutton said Republicans could explore two fronts in a possible court case after recounted vote totals are certified by the state Dec. 14. Republicans have claimed that local election officials never properly reconciled the number of votes with the number of voters and in some cases, failed to remove so-called excess votes. That case was already made to the Minnesota Supreme Court, which promptly rejected it.
Sutton maintains the matter is still "a potential issue in a contest."
The other issue is Minnesota's law allowing registered voters to vouch for unregistered voters on Election Day. Republicans have raised complaints about the voucher law before, but have never offered any evidence of wrongdoing.
Foley says both issues would face potentially complex legal hurdles.
"There's the practical problem that once the ballots are in the pool, it's like trying to pick a single particular drop of water out -- you can't do it," Foley said.
In addition, he said, if the total number of ballots they cast doubt on does not exceed Dayton's lead, Emmer still may not have a legal case because "you generally can't plead a contest if you don't have the numbers," Foley said.
Staff writers Rachel E. Stassen-Berger, Kevin Giles and Joy Powell contributed to this report. Bob von Sternberg • 612-673-7184