Leaders in Minnesota's Democratic and Republican parties say they are lining up lawyers and marshaling resources for what is expected to be a protracted, high-stakes legal battle over the results of the upcoming election.
The mobilization is being spurred by President Donald Trump's criticism of the unprecedented growth of mail-in voting — and his unwillingness to assure voters he would concede a loss to Democratic challenger Joe Biden.
The stakes are particularly acute in potential battleground states like Minnesota, the scene of a bitter recount battle in the 2008 Senate race between Al Franken and Norm Coleman, one of the closest races in Senate history, and one fought largely over contested absentee ballots.
"The situation with Norm Coleman and Al Franken and that U.S. Senate seat, that's a haunting memory for many Minnesota Republicans, and we want to make sure we don't see ourselves in that situation this year," said Jennifer Carnahan, chairwoman of the state Republican Party.
Her Democratic rival, DFL Chairman Ken Martin, said he's worried what a legally contested presidential race could do to the country. "I don't want to be too much of a conspiracy theorist. But the period between the election and inauguration could be one of the most horrific and violent in our country's history," Martin said.
The DFL has a team of pro bono attorneys lined up to assist the party with post-vote litigation in the event any election results are contested, Martin said. Carnahan said the Republican National Committee has legal resources at the ready for the same situation.
Minnesota Secretary of State Steve Simon, a Democrat, said officials from his office have been meeting with lawyers in the state Attorney General's Office to discuss what could happen after Nov. 3 if it's not possible to quickly call the presidential race.
Officials are necessarily coy about their legal strategies. "Let's just say we have gamed out multiple scenarios," Simon said.
In 2016, Trump lost Minnesota to Democrat Hillary Clinton by less than 45,000 votes. His campaign has worked this year to push the state into his column, although Biden has consistently led in polls here — mirroring the Democrat's persistent advantage in other targeted states in recent months.
But if the margin between the candidates verges close to recount territory, the state's moves this year to accommodate expanded mail balloting — already the subject of court wrangling — would likely fall under greatly magnified legal scrutiny.
"If it's close here, then we're likely to see action around questions like: Was this group of ballots received on time? Were these ballots legally postmarked?" said Hamline University political science Prof. David Schultz, an expert on election law.
Republicans in Minnesota are already in court challenging a judge-approved consent decree allowing election officials to count mail-in ballots that arrive as much as a week after Election Day.
The tension would likely rise, Schultz said, in the event that more Trump supporters vote on Election Day, while mail-in votes that trickle in afterward favor Biden. This dynamic undergirds concerns from Democrats that Trump will declare "victory" based only on votes counted on Election Day.
The Minnesota agreement, reached between Simon's office and the labor-aligned Alliance for Retired Americans, gave state election administrators until Nov. 10 to count ballots mailed before Nov. 3. The decree also requires that officials count ballots that are received by Nov. 10 even without a postmark date unless "a preponderance of evidence demonstrates it was mailed after Election Day."
Critics say the new rule could be an open invitation to litigation.
"If you are talking about receiving ballots and still counting them up to one week after the election even if they came in without valid proof they were mailed before the election, you are creating an unnecessary outlet for abuse and fraud," said Jason Snead, executive director of Honest Elections, a conservative-aligned group behind legal challenges to expanded voting plans in multiple states, including Minnesota.
Simon and others note that Minnesota has had no demonstrated issues with widespread voter fraud. Snead argued that it doesn't need to be widespread, or even necessarily documented, in order to potentially swing an outcome in a close race.
Honest Elections is representing two Republican presidential electors in Minnesota who have filed suit to overturn the consent decree, with a ruling expected before Election Day.
The worst-case scenario, even if unlikely, is that ballots received after Election Day would swing the outcome of the presidential race in Minnesota. "I think at that point whichever candidate found themselves behind, whether it's Trump or Biden, could be expected to file litigation," Snead said.
It's not just the presidential race in Minnesota that could generate legal havoc if the results are close. A congressional race that falls into recount margins could also be grounds for lawsuits around absentee ballot rules.
Richard Fiesta is executive director of the Alliance for Retired Americans, which initiated the legal proceedings that led to the consent decree. The group's lead attorney is Marc Elias, the Democratic Party's election-law heavy hitter, who led the legal team that helped secure Franken's 312-vote win in 2008. Legal proceedings delayed Franken's swearing-in as senator until July 7, 2009.
It was the nation's most protracted election dispute since the 2000 presidential recount battle in Florida between Al Gore and George W. Bush. The election was decided by a 5-4 ruling of the U.S. Supreme Court on Dec. 12 of that year.
In 2020, COVID-19 has exacerbated the long-festering political divisions. Fiesta said the longer window for receiving ballots in Minnesota was made necessary by a pandemic-driven expectation that election administrators would be processing many more mailed ballots this year and in response to warnings from the U.S. Postal Service that it might have trouble keeping up.
"These are two large factors that are no fault of the voter," Fiesta said.
As for the legal vulnerability of undated ballot postmarks, Fiesta said: "We don't think that the number of ballots that could come under some scenario like that would be enough to really affect the election one way or the other."
The Electoral College meets Dec. 14 to certify the presidential vote. Legal uncertainty about the outcome in Minnesota — or any other closely contested state — has the potential to plunge the country into uncharted political territory if both candidates fall short of the 270 votes needed.
"I'll rest easy after December 14," Simon said. "That, for me, is the exhale date."
Patrick Condon • 612-673-4413
