Tom Emmer has gained little ground so far in the governor's race recount, and on Saturday his attorneys appeared to abandon a key strategy in dropping the 2,600 "frivolous" challenges. There may yet be a path to victory for the Republican, who reiterated that "news of my demise is a little premature."
For Republican Tom Emmer, behind by nearly 9,000 votes, the path to the governor's office has only gotten steeper since Election Day.
Emmer has gained little ground so far in the still-unfolding statewide recount, and on Saturday his attorneys appeared to abandon a key strategy by dropping nearly all of their "frivolous" ballot challenges -- about 2,600 -- in Hennepin County. Afterward, one of Emmer's attorneys, former state Supreme Court Chief Justice Eric Magnuson, said his client is unlikely to prevail when results of the recount are certified later this month.
Meanwhile, local election officials predict that most of Emmer's challenges will be tossed out when the state Canvassing Board meets this week. Emmer is also lagging behind DFLer Mark Dayton on recount fundraising and has said he is not planning a judicial contest.
There may yet be a path to victory for the embattled Republican, who reiterated Saturday that "news of my demise is a little premature."
But there also is an increasingly louder drumbeat from those asking not if Emmer will concede, but when. Broadcasting mogul Stan Hubbard, who owns KSTP-TV and who has been a staunch Emmer supporter and donor, said: "It doesn't look too good, does it? I would think that Mr. Dayton is going to be governor."
Republicans say concession isn't yet in their vocabulary, but are frank about the challenges ahead. "We're behind. I don't think that's a secret," said state Republican Party Chairman Tony Sutton.
Emmer, who has kept a low profile since Election Day, said Friday that he never thought the hand recount would "dramatically change the course of this election" and acknowledged that "Mark Dayton has more votes ... right now."
"The governor's race is not over," he told members of the GOP's central committee at its winter meeting Saturday. "It's absolutely not over."
But increasingly, even Emmer supporters say they believe Dayton will take over when Gov. Tim Pawlenty leaves office next year.
Big margin, few targets
"I think psychologically, we've all sort of moved into Governor Dayton," said John Gilmore, a member of the GOP central committee who backed Emmer. "I know people on the left, right and in the middle. It's resignation on the right and it's a settled fact in the middle and on the left."
Hubbard said that despite his belief that Dayton is likely to be the next governor, he contributed thousands of dollars to the Emmer recount effort -- not because he thinks Emmer won but because he wants a full investigation of the vote results.
Election experts say it is nearly impossible for Emmer to surpass Dayton's lead.
"Here you kind of have the anti Bush versus Gore -- big margin, not a lot of targets," said Rick Hasen, a Loyola Law School election law professor, citing the 2000 presidential recount.
Recounts move relatively small numbers. The instances where they flip races tend to come in those where the margin that separates candidates is fairly small, according to a study of historic recounts by FairVote, a Maryland-based organization that focused on voting reform issues.
FairVote found that "statewide recounts resulted in an average margin swing of 296 votes." Dayton leads Emmer by 8,770 votes.
Rob Richie, of FairVote, said the Dayton advantage is "absurdly out of proportion" with what his organization has ever seen turnover during a statewide recount.
Richie said Emmer's chances for victory would almost have to come through some "colossal mistake" in the way the votes were tallied.
Challenges and a contest?
So far, the hand recount of 2.1 million ballots has turned up no such mistake.
Emmer last week acknowledged that Dayton's apparent recount lead looked solid.
On Saturday, asked if the result of the recount would show Emmer trailing Dayton, Magnuson said, "I would be surprised if it didn't."
Emmer recount watchers have challenged about 3,600 ballots, with more than 2,800 of those deemed frivolous by local election judges. That falls far short of what Emmer needs to surmount Dayton's pre-recount lead. Dayton had several dozen challenges ruled frivolous and has withdrawn them.
During the recount that ended Friday, Emmer supporters had filed 2,604 challenges to ballots cast in Hennepin County on Election Day, but election judges said they were without merit.
After reviewing the ballots for more than five hours Saturday, they retained only 24 -- less than 1 percent.
"We got rid of a lot of chaff," Magnuson said. "I told the Canvassing Board I was going to pull out a lot, and I did."
On Friday, the members of the state Canvassing Board gave Emmer's attorneys the go-ahead to review the frivolously challenged ballots in all of Minnesota's 87 counties.
But Hennepin was the key to Emmer's hope of picking up a significant number of votes, since it had more than three-fourths of those ballots statewide. In only two other counties, Dakota and Renville, did the number exceed 100.
Both campaigns have challenged a relatively small number of ballots that passed muster in the eyes of election judges; 734 of them were filed on behalf of Emmer, 175 for Dayton.
Magnuson spent the day culling ballots by mumbling "withdrawn" as a county elections staffer flipped ballots in front of him.
He said the vast number of challenge withdrawals "doesn't mean I agreed they were frivolous ... but I was not going to take them before the Canvassing Board."
Board members will decide whether to allow the challenges to stand, but during Friday's meeting, Supreme Court Justice Paul Anderson upbraided his former colleague and another Emmer attorney, saying the campaign's outsized number of frivolous challenges amounted to an attempt to "disenfranchise" voters who cast those ballots.
Asked about the strategic significance of the mass withdrawal of ballots, Magnuson said, "I haven't abandoned anything. I'm trying to get the [vote] count accurate."
Charlie Nauen, a Dayton attorney, said after the ballot examination that it proved "what we knew going in -- nearly all of these were frivolous."
Emmer has called the recount "merely a step in the process," and said it "has never been my contention that the hand recount would dramatically change the course of this election." But he maintains that a secondary issue has yet to be resolved -- the number of properly cast ballots on Election Day.
He has suggested that there may be more votes than voters, which he said would be "an assault on American voting laws."
He and party leaders say local election officials failed to properly reconcile the number of votes cast with the number of registered voters. Some election officials used a method allowed by administrative rule, but which differs from that required in statute.
Both the Canvassing Board and the Minnesota Supreme Court have denied Emmer's request to force local election officials to recheck their ballot numbers.
The high court has not yet issued a formal opinion on its rejection of his argument. Emmer said that while he's not planning a legal contest, he "just want[s] to hear what their reasoning is. ... Let's get an answer on the reconciliation issue."
The Canvassing Board, made up of two district judges, two Supreme Court justices and the Secretary of State, will go through challenged ballots this week.
The state is expected to certify the vote and declare a winner on Dec. 14.
If Emmer then decides to file a legal challenge, the case would move to court. Asked Saturday whether he plans what's formally known as an election contest, he said "it's premature to talk about any of that."
Pawlenty on Saturday dismissed growing speculation that Emmer's prospects are dim. "We don't know the answer to that until we let the process finish in the next week or so," he said. "Let's let the legal process go."
A new governor is scheduled to be inaugurated on Jan. 3. Pawlenty has indicated that he will stay in office until a successor can start.
On Saturday, Emmer told the Republican central committee members that "this is by no means the end of the election cycle -- it's the beginning of something new ... We're not going away regardless what happens. We're stickin' around."
Rachel Stassen-Berger • 651-292-0164 Bob von Sternberg • 612-673-7184