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Minn. election law: Clarity quickly chased by confusion

  • Article by: RACHEL E. STASSEN-BERGER
  • Star Tribune
  • November 22, 2010 - 6:55 AM

After the last election recount, Minnesota lawmakers tried to anticipate everything that could go wrong and legislate it away.

But election law -- and political reality -- are messier than that. As Minnesota embarks on another statewide recount, expect those seemingly simple, well-intentioned laws to look as clear as mud by the time the next governor is chosen.

"It is the attorneys' job to try to make less clear ... what may, on first pass, appear to be clear," said Guy-Uriel E. Charles, a University of Minnesota law professor.

Already, Republican Tom Emmer's attorneys have asked the state Supreme Court to dive into whether local officials did enough to make sure there were no more votes than voters on Election Day. The fairly technical issue could delay the start of an expected gubernatorial recount. The court may hear oral arguments on that issue Monday afternoon.

Attorneys for Democrat Mark Dayton have raised a flag of their own, questioning whether constitutional language stipulates that Republican Gov. Tim Pawlenty should stay in office if the race isn't settled by January. Dayton is ahead in the current count by 8,755 votes and his backers fear Republican legal action could delay his seating.

Meanwhile, local election officials are struggling to get everything done quickly as they prepare for the coming recount while complying with other official duties.

Election experts say Minnesota's election process -- tested and refined by a high-profile recount in 2008 -- starts on pretty solid footing.

But that's no protection.

"Something can always come up, even in a well-designed election system," said Ned Foley, an election law professor at Ohio State University.

State law requires an automatic -- and that means state-funded -- hand recount in races where the top two candidates are separated by "less than one-half of one percent of the total number of votes counted." That means election watchers knew as vote margins tightened that Minnesota was likely to face another long look at its ballots.

There is some debate about whether that threshold is the right one, but the math part is clear.

Assuming no major changes between now and next week, the state canvassing board -- made up of the Secretary of State, two district judges and two Supreme Court justices -- will meet and declare the need for a gubernatorial recount. That recount is slated to start Nov. 29, but legal wrangling may put it on hold.

Lessons learned

In the achingly close and hotly contested 2008 U.S. Senate race, backers of DFLer Al Franken and Republican Norm Coleman watched each ballot being recounted and challenged local officials' calls on how thousands of votes should be recorded.

Those challenges took votes out of the count and made a mountain of work for the state canvassing board, the arbiter of disputed ballots. It took that 2008 board nearly a week to wade through the stack.

Since then, state officials tightened the rules for challenging ballots during a recount and gave local officials more power to minimize challenges this year.

Another overhaul that may make this recount easier: Major changes to absentee balloting laws. In 2008, a fight over about 12,000 rejected absentee ballots consumed months of the Coleman-Franken battle. After the changes, this year's rejection rate was far lower.

Still, every rejected ballot is painful to election officials. "I think we still need to revisit the absentee processing," said Joe Mansky, Ramsey county's election manager.

No money rules

The Legislature may also revisit the law governing fundraising for state races.

Minnesota lawmakers have been largely silent on who can raise money for a recount, how that cash should be disclosed and what limits there should be on contributions.

That leaves Dayton and Emmer free to gather as much cash as they want from anyone without disclosure of amounts or donor identities.

"If this is going to be a pattern in the future, there should be some thought as to how the money piece is regulated," said Ken Martin, Dayton's recount manager. The Dayton team has set up a political non-profit to gather recount funds and has pledged to release the names of the donors once the winner is chosen. Emmer has not yet set up a similar structure but has said he would comply with the law.

Power of the loser

Minnesota law grants a recount loser extraordinary power to place the winner in limbo. By law, the loser has seven days to file an election contest -- a legal challenge to the election that occurs after the recount. That applies in all races except state legislative fights.

When such a contest is filed, the recount winner cannot get an election certificate until the trial is complete. Coleman's 2008 contest meant Franken did not take office until July, nearly seven months after the recount was done.

This year, the law means Minnesota may still be without a new governor in January if Dayton and Emmer are locked in a legal battle.

According to the state constitution, "The term of office for the governor and lieutenant governor is four years and until a successor is chosen and qualified." Many, including Pawlenty, read that to say Pawlenty stays until he is replaced.

Dayton's team maintains the candidate who gets the most votes by the determination of the canvassing board after the recount should be seated. But that's a fight for the future.

First, Dayton attorney Charlie Nauen said, he's going to look into the recount slated to start soon. That may be challenge enough.

"Each one brings its own unique set of circumstances," said veteran Republican election attorney Fritz Knaak, who worked for Coleman in 2008 but who has no role in this one. "I'm just grateful that I'm not in the middle of it."

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