Updated at 11:36 a.m.
At the heart Tom Emmer's petition yesterday to the Minnesota Supreme Court was an allegation that election judges did now follow proper "reconciliation" rules.
Specifically, the Emmer campaign's affidavits claim that judges at several locations improperly compared the number of ballots to voter reciepts, rather than to signatures on the polling roster. They point to a state statute which says judges must count the "number of signed voter's certificates" or "the number of names entered in the election register."
But an administrative rule, which agencies adopt to clarify preexisting law, allows "voter's receipts" to be counted against ballots.
"The election judges shall determine the number of ballots to be counted by adding the number of return envelopes from accepted absentee ballots to the number of voter's receipts issued pursuant to Minnesota Statutes, section 204C.10, subdivision 2, or to the number of names signed on the polling place roster."
The Revisor's website notes, "An agency rule that is adopted under the rulemaking provisions of Minnesota Statutes, chapter 14, has the force and effect of law."
When rules and statutes clash, however, statutes win. This may be a key argument next week before the Supreme Court.
Emmer spokesman Carl Kuhl says the statute is "very clear" about what may be counted -- thereby invalidating the rule. He notes that the Secretary of State's election judges guide (page 41) echoes what is written in the statute, not the rule.
Election judges in Minnesota's two largest counties believe counting receipts is allowed under law. Ramsey County Elections Manager Joe Mansky wrote in an e-mail this morning, "We instruct our judges to count voter receipts, which is what we believe the state law requires."