Mark Dayton Hires Former Franken Lead Attorney In MN-GOV Recount

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The old band is back together in Minnesota. Democratic gubernatorial nominee Mark Dayton last Friday signed up Marc Elias, a top Democratic election attorney who headed up Al Franken’s legal team in the 2008 Senate recount and subsequent litigation, to work on the Minnesota Recount Part II fight.

Elias will join Charlie Nauen as co-lead counsel, Dayton spokesperson Denise Cardinal tells us. (Nauen also worked in the Senate recount, on an independent suit by a group of Franken voters whose absentee ballots had been rejected.) Dayton has also brought 2008 veteran attorney Kevin Hamilton on board, who will be rejoining his former legal teammate David Lillehaug in assisting Nauen and Elias.

Elias, Lillehaug and Hamilton formed the core of Franken’s legal team during the epic eight-month fight over the 2008 Senate contest. Elias and Hamilton also previously worked on the 2004 Washington state gubernatorial recount, when Democrat Christine Gregoire won by a super-thin margin over Republican Dino Rossi.

Dayton leads Republican Tom Emmer by 8,755 votes out of about 2.1 million total ballots, well within the 0.5% margin to trigger a statewide recount. However, many observers have doubted that Emmer could pull ahead, as Dayton’s lead is probably too wide to be reversed barring any surprising shifts. By comparison, the 2008 Senate recount and litigation resulted in a net margin shift of only about 500 votes. (Both candidates gained votes in the recount, due to lightly-marked ballots being counted by hand rather than machine, and wrongly-rejected absentee ballots being counted. Norm Coleman led by just over 200 votes before the recount, with Al Franken leading by slightly over 300 when it was over.)

However, this recount does present some very high stakes even if there isn’t a strong possibility of a change in the result: A legal contest could result in Republican Gov. Tim Pawlenty staying in office in the interim, with the opportunity to work with a newly elected Republican legislature. Dayton’s attorneys have cast doubt on that interpretation of the constitutional language in question, a signal that this very scenario could end up in court.

TPM asked Cardinal whether the hiring of Elias meant that Team Dayton was preparing for a long fight into January. Cardinal responded: “What we saw was the other side has indicated by their briefs that they’ve filed with the [state] Supreme Court, and also in the comments they’ve made — we also found out they were hiring a trial firm last week — we knew that we had to prepare for a legal contest.”

Cardinal also pointed out that Elias was also previously Dayton’s attorney, back when Dayton served in the U.S. Senate for one term from 2001-2007.

Do they anticipate a contest going into January? “We fully expect Mark Dayton to be seated as governor on January 3, barring any unforeseen circumstances, judging by what we’ve seen from the post-election reviews and the county canvassing process,” Cardinal responded. “Minnesota’s election system has a clean bill of health, and Mark Dayton has an insurmountable lead that experts in the state have said is mathematically impossible for Tom Emmer to overcome.”

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