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Don Davis, State Capitol Bureau, Published November 23 2010

Second-place Emmer loses in high court

ST. PAUL – Governor hopeful Tom Emmer lost a Supreme Court ruling Monday as an election board prepares to order 2.1 million ballots Minnesotans cast in the race to be recounted.

“Those numbers are not going to change much at all now,” said former U.S. Sen. Mark Dayton, who leads Emmer by 8,770 votes.

Dayton stopped short of declaring victory.

While Democrat Dayton continued a series of meetings preparing to become governor on Jan. 3, he also said the recount process should be allowed to play out.

Republican Emmer had asked the high court to order the State Canvassing Board to make sure election officials in every one of the state’s 4,136 precincts count every voter’s signature from Election Day and compare that with the number of ballots cast. If there are more ballots than voters, Emmer attorney Diane Bratvold argued in the Supreme Court, state law requires ballots to be removed at random until the numbers match.

Another Emmer attorney, Tony Trimble, said there were so many cases already reported about over-voting that thousands of ballots could be removed.

Attorneys for Dayton and Secretary of State Mark Ritchie argued that local elections officials were following a rule that was implemented to fill a gap left when some voting laws were changed and that an accurate vote count is the most important goal.

Dayton’s recount staff was happy with the high court ruling.

“Minnesota’s election went through a thorough process of review, both during the county canvassing and also during the post-election reviews, neither of which showed any indication of problems,” Dayton recount director Ken Martin said. “Again, Minnesota’s elections have a clean bill of health.”

Chief Justice Lorie Gildea, appointed by Republican Gov. Tim Pawlenty, issued the order less than two hours after a hearing in which Dayton and Emmer’s attorneys presented their cases. She made no comment about why the court decided to throw out the Emmer case, but said the full opinion would come later.

The ruling came quickly, she said, so the State Canvassing Board could conduct business.

The board is to meet at 10 a.m. today and receive vote returns from around the state. The margin between Emmer and Dayton is slim enough to trigger a statewide, state-funded hand recount of every one of the 2.1 million ballots.

The recount would begin in each of Minnesota’s 87 counties on Monday and continue for a few days until each vote is counted.

Ritchie said he expects the Canvassing Board to decide a winner on Dec. 14. However, the trailing candidate can take the recount to court, as happened in the 2008 U.S. Senate race. That could delay an outcome for months.

Bratvold told justices that state law requires election officials in each precinct to count actual voter signatures and compare that number to the number of ballots cast. Precinct election officials used a different list of voters, without signatures, to compare with the number of ballots.

Justice Alan Page told Bratvold that it appeared to him that the method Emmer wants and the one used on Nov. 2 essentially are the same. “You end up with the same numbers either way,” he said.

Added Justice G. Barry Anderson: “Aren’t we really arguing about form over substance?”

The attorney general’s office, representing Ritchie, said the Emmer-Republican legal team did not claim that the election results are inaccurate and did not show that the method of reconciling voters and ballots that Emmer wants is more accurate than how it occurred.

“It doesn’t really affect the grand scheme of things,” state Solicitor General Alan Gilbert told the justices about the Emmer complaint.

Dayton attorney Marc Elias said that it should not matter whether signatures were counted or voters were counted another way, as long as an accurate vote count results.

“You are not going to count a pile of paper better just because it has signatures,” Elias said.

The attorney, a recount expert, told reporters that short of a major surprise, there is no way Emmer can make up 8,770 votes.

Republicans were not happy with the court ruling.

“We will continue to work to ensure that Minnesota election law is followed, that the most basic right of our election system of one person, one vote is upheld,” GOP Chairman Tony Sutton said. “It is critical that our election laws are followed so that Minnesotans have confidence in the ultimate outcome of this election.”

A document Emmer filed with the high court Monday morning showed that his legal team has thought about challenging the recount in court.

“The laws of Minnesota must be followed by all election officials,” Republicans argued in the document. “To hold otherwise would undermine the rule of law and the integrity of the electoral process.”


Don Davis reports for Forum Communications Co.