‘Phantom votes’ suit hangs over gov recount
A GOP legal petition tries to lay the foundation for expunging improperly recorded voters’ ballots
“Reconciliation” was the word of the day in the Minnesota governor’s race.
In Republican state party chair Tony Sutton’s view, the alleged failure of local election officials to properly reconcile the number of ballots cast with the numbers of voters who signed in at polling places may have resulted in “tens of thousands” of improperly counted ballots. They could prove crucial in a contest that Republican Tom Emmer currently trails by nearly 9,000 votes as it heads for a recount.
“We don’t want phantom votes to be counted,” Sutton said at a Wednesday press conference to announce the filing of a lawsuit with the Minnesota Supreme Court on the issue. “It dilutes people’s votes if there are more ballots being cast than voters who signed in on election day.”
But from the vantage point of Ken Martin, recount director for Mark Dayton’s campaign, the GOP lawsuit is simply a means to waste time and delay the inevitable swearing in of the first DFL governor in two decades. “What is this really about? This is about damaging the ability of our next governor, Mark Dayton, to govern in this state,” said Martin, at a subsequent press briefing. “And that’s wrong, it’s un-Minnesotan and I don’t think the voters of this state will stand for it.”
At issue is a state statute that lays out the proper means for determining how many ballots should be counted at each polling location. It states that valid absentee ballots should be added to either the “number of signed voter’s certificates” or to the “number of names entered in the election register” in order to arrive at the proper tally.
But there’s also an administrative rule, which agencies adopt to clarify state law, pertaining to the issue. It states that absentee ballots should be added to the number of “voter’s receipts issued” or to the “number of names signed on the polling place roster” to calculate the proper vote total.
Both relevant guidelines, in other words, suggest that there are two legitimate ways of arriving at the proper tally. But Emmer’s lawsuit argues otherwise. It posits that the only legal means of reconciling votes is by adding the number of absentee ballots to the total number of signatures on the election register. The suit contends that state law does not recognize using voter receipts to come up with a tally “as a method that will ensure accuracy.”
Whether that interpretation of statute is persuasive will be the crucial issue weighed by five Minnesota Supreme Court justices when oral arguments in the case, current scheduled for Monday, are held. (Justices Paul Anderson and David Stras will not participate in the case because they serve on the State Canvassing Board, which will oversee the recount.) It’s particularly important because election officials in many counties – including the two most populous, Ramsey and Hennepin – have indicated that they relied on receipts to calculate vote totals.
David Schultz, a professor of political science and law at Hamline University, suggests that the lawsuit is likely to get tossed out on a technicality. Under a legal premise known as “exhaustion of administrative remedies,” plaintiffs must show that there’s no redress available to them without resorting to the court system. Because the State Canvassing Board hasn’t even certified the results, Schultz argues, Emmer’s team is jumping the gun in claiming errors in the vote tally. “Filing the order now seems way premature, and it seems pretty likely that the court will dismiss the petition,” he said.
But Schultz also believes that actually winning the case might not be the primary goal of the lawsuit. Instead, he suggests, the machinations may be intended to create the impression of widespread problems with vote-counting and lay the foundation for a legal contest of the final tally. “It’s providing the political ground cover for the legal battle they want to fight to delay the seating of Dayton,” Schultz argued.
But even if Republicans get their wish, the math still looks extremely difficult for Emmer. Under state law, if election officials determine that there are more ballots than properly identified voters, the remedy is to randomly remove ballots until the numbers are reconciled. That means Dayton and Emmer would most likely lose votes at a roughly equivalent rate. Even if it’s ultimately discovered that there are somewhere in the neighborhood of 30,000 more ballots than voter signatures (as Sutton has suggested was the case in 2008), the mathematical odds of Emmer erasing an 8,755-vote deficit would seem remote.
The GOP’s lawsuit raises another intriguing specter. If ballots are ultimately tossed out across the state, the governor’s race would not be the only political contest potentially affected. The vote tallies in down ballot races would also presumably be in the mix. That means, in theory at least, that DFLers could reduce some of the carnage in the state House and Senate races. Republicans took control of the House on the strength of six contests that their candidates carried by a total of just 694 votes.
But if Sutton’s worried about such collateral damage from the lawsuit, he wasn’t letting on at Wednesday’s press conference. “Let the chips fall where they may,” he said.