Supreme Court denies Emmer petition
Canvassing board also declines his lawyers’ reconciliation request
The Minnesota Supreme Court on Monday denied a petition from Republican Tom Emmer and the Minnesota GOP arguing that local elections officials failed to properly reconcile the number of votes cast with the number of voters registered. The decision paved the way for the state canvassing board to certify the election results on Tuesday and move forward with an automatic recount that’s scheduled to begin next week.
The decision doesn’t mean that the concerns about excess votes raised by Republicans will disappear from the legal wrangling over the election, however. The decision can be seen as the court’s refusal to step in to prevent the canvassing and recount process from unfolding as prescribed in law, said David Schultz, a professor of political science and law at Hamline University – but it’s not a dismissal of the underlying legal argument.
The Emmer camp maintains there could be thousands of excess votes across the state already included in totals because local officials failed to properly reconcile the number of votes cast at each precinct with the number of eligible voters who signed in at the polls. The Emmer/GOP lawsuit argued that the state canvassing board would err if it certified the results without properly tackling this issue. The Supreme Court didn’t release a full opinion explaining its ruling or judging the merits of Emmer’s complaint, the order said, “so as to not impede the orderly election process.”
In an interview with Minnesota Public Radio Tuesday morning, Emmer denied that the Supreme Court ruling was a setback and said the issue of excess ballots is something that “ultimately does need to be addressed.” Emmer, however, also said he did not expect the canvassing board to do anything different from the Supreme Court, leaving the door open for Republicans to raise this same concern throughout, and perhaps after, the full recount. Entering that process, Dayton has a lead of 8,770 votes.
“If there are irregularities, if there are potentially more ballots than there are voters,” Emmer said, “I think that’s something that all Minnesotans, regardless of party persuasion, would say, ‘That’s a problem and we’d better address that.’”
Attorneys for Emmer, including former state Supreme Court Chief Justice Eric Magnuson, raised the issue of reconciliation again at the Tuesday meeting of the state canvassing board. But the board declined to adopt the Emmer camp’s recommendation that its requested prescription for reconciliation be applied before the ballots are formally recounted.
The board said its decision on the reconciliation question was based on the Supreme Court finding. Secretary of State Mark Ritchie, who sits on the board, added that bringing the reconciliation process into the governor’s recount would cast doubt on other elections across the state.
But Magnuson maintained the position that the reconciliation process must be undertaken to ensure all the votes are valid. The point of bringing the matter up now, he said, was to deal with any discrepancies on the front end rather than after the recount.
“If you’re going to certify the total number of votes based on an approximation, there’s something wrong,” he said. Failing to use voter signature rolls to verify totals, as the Emmer team has asked, would yield “only an approximation,” Magnuson said.
Going forward, the issue of reconciliation and excess votes will be the Emmer team’s best, and perhaps only, legal lever, added Schultz, barring revelations of widespread fraud. A number of times during the oral arguments Monday, justices seemed to agree that there were reasons to be concerned about the voter reconciliation process, but Schultz said it seems the court saw it best to allow the post-election process to continue. “I think they’re saying that this is too soon” to litigate the question, he added.
At the heart of the lawsuit was how local officials determined the difference between the number of votes and voters passing through precincts on Election Day. State law calls for voter certificates, which are no longer used, or signatures on the election register to be used to determine how many votes were cast on Election Day. Administrative guidelines, however, allow for the use of voter receipts instead.
The difference between those two approaches, according to Republican attorney Diane Bratvold, could mean that there are votes counted in final tallies that were not properly cast. The lawsuit had asked the court to embrace the register of voter signatures as the proper basis for any count of ballots, and to forbid the use of voter receipts as a substitute. Republicans have said there could be as many as 12,000 excess votes – allowing roughly for three or four per precinct – although such widespread anomalies have yet to be found by county canvassers.
DFL attorney Marc Elias dismissed the contention that excess votes could have a large impact on the ultimate result of the election, and said that counting voter receipts – as provided by administrative guidelines – was the best way to determine the proper vote counts.
“This rule is on the books, it’s not a secret,” Elias said, suggesting to the justices that they be skeptical of a technical legal challenge such as this raised after the election.
The court returned its decision just a couple of hours after hearing the arguments. Raleigh Levine, a law professor at William Mitchell, said the quick ruling shows the court doesn’t want a repeat of the drawn-out process from 2008. The ruling itself doesn’t change the legal equation in the recount, she added, although the issue is bound to come up again through the course of proceedings.
“At this point,” Levin said, “the Emmer camp would like to narrow the gap as much as possible. They get two bites of the apple.”