State allows disputed ballots to be examined again

  • Article by: BOB VON STERNBERG and RACHEL E. STASSEN-BERGER , Star Tribune
  • Updated: December 3, 2010 - 10:01 PM

A Supreme Court justice also scolded his former colleague who is now one of Tom Emmer's attorneys in the recount.


Tom Emmer addressed the media about the ballots being challenged during a news conference Friday at the Republican Party of Minnesota headquarters.

Photo: Elizabeth Flores, Star Tribune

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Thousands of ballots deemed frivolous have taken center stage in the recount of Minnesota's governor's race and on Friday caused one member of the state Supreme Court to heartily scold a former judicial colleague.

Attorneys for Republican Tom Emmer told the state Canvassing Board on Friday that they would be willing to withdraw some of those frivolous challenges if they could first re-examine the ballots in question.

The board granted that request, but not before Supreme Court Justice Paul Anderson, who sits on the board, upbraided Emmer attorneys Eric Magnuson, who stepped down this year as the high court's chief justice, and Tony Trimble, for the actions of those they supervise.

Anderson said the message to voters in unnecessary challenges was: "We are basically going to disenfranchise you." Ballots that are legitimately challenged are invalidated and no longer count. Anderson suggested that Magnuson, who sat on the Canvassing Board in the 2008 U.S. Senate recount, had not only violated his own 2008 decisions, but needed a reminder about the Rules of Professional Conduct for state lawyers.

Anderson asked Magnuson and Trimble if they were aware that Minnesota lawyers were barred from bringing frivolous matters -- a legal term meaning without merit -- before any body, including a tribunal such as the Canvassing Board.

"That's correct, Your Honor," Magnuson said, who noted that it is his job to advocate for his client, Tom Emmer.

Lawyers for both Emmer and DFLer Mark Dayton will head to the Hennepin County Government Center on Saturday morning, where Emmer's team will determine whether some of the more than 2,800 frivolous challenges they filed in Hennepin County should be withdrawn.

Election officials in all other counties with frivolously challenged ballots have been instructed by the Canvassing Board to copy them and forward them to the secretary of state's office, where Emmer's lawyers can examine them.

All counties have completed their hand-recount of the 2.1 million ballots cast in the governor's race. Hennepin County was last, finishing its recount Friday afternoon. The final tally from the secretary of state on Friday night showed Dayton ahead by 8,663 votes, a decrease of 107 votes since the recount began.

Magnuson told the board that Emmer's team included some "overzealous" volunteers who may have challenged ballots that should not have been challenged. He pledged Friday not to bring any inappropriate challenges to the state Canvassing Board when it meets next week to begin reviewing challenged ballots.

Dayton's attorneys were left out of the scolding because they made only a few dozen challenges that were ruled frivolous and withdrew those on Thursday.

During Friday's Canvassing Board meeting, board members made clear they wanted to avoid a legal contest if possible.

Emmer's instruction to his attorneys to review and pare challenged ballots came a day after Dayton withdrew the small number of frivolously challenged ballots his supporters had identified.

"My goal is to expedite the process," Emmer said.

But Emmer stressed one of the arguments that would likely be used in a court challenge, a standard known as "reconciliation." Reconciliation is the process local officials go through on election night to match the number of votes to the number of voters and remove any excess votes. Republicans claim that wasn't properly done.

Emmer said Friday he believed the number of votes cast on Election Day may have far exceeded the number of voters, calling it "egregious disregard for election law ... an assault on American voting laws." He didn't offer any detailed evidence of that claim.

The GOP, on Emmer's behalf, asked the Supreme Court to review that claim. The court quickly rejected the request. The GOP team also asked the Canvassing Board to make local officials reconcile votes before the start of the recount. That request was refused.

The Supreme Court has yet to issue an opinion on the Emmer request, although it did order it dismissed. Emmer said the content of that opinion might sway his decision on whether to file a lawsuit.

Bob von Sternberg • 612-673-7184 Rachel Stassen-Berger • 651-292-0164

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