Minnesota Recount Part II Set To Begin — As Board Figures Out The How

The Minnesota State Canvassing Board held a busy meeting this morning, as they begin to make some crucial decisions on how the recount will proceed in the gubernatorial race between Democrat Mark Dayton and Republican Tom Emmer.

With the counties finished proofreading their spreadsheets, as well as routine hand recounts in randomly selected precincts to double-check the accuracy rate of the optical-scan machines, Dayton leads by 8,770 votes, or 0.42%. While this is within the 0.5% needed to trigger a statewide recount, many observers have doubted that Emmer could pull ahead, as Dayton’s lead is probably too wide to be reversed barring any surprising discoveries in the hand count. However, a possible drawn-out legal contest could potentially result in Republican Gov. Tim Pawlenty staying in office in the interim, with the opportunity to work with a newly elected Republican legislature.

With the State Canvassing Board formally declaring there would be a recount, today’s meeting has been dominated by questions of how to conduct it, in light of the lessons learned from the thorough recount from the 2008 Senate race — and the very thorough six months of extra litigation that followed it, with the result being within just a few hundred votes at the time. And a cast of familiar faces from last time, some of them in different roles this time around, grappled with these new issues.First off, Emmer attorney Eric Magnuson (a former state Chief Justice who previously served on the Canvassing Board in the 2008 recount) continued to press the Emmer campaign’s case that the recount had to involve a random removal of excess votes in precincts where there were more ballots than the total number of people who properly signed in on the register. (Differences can occur for a number of reasons, ranging from fraud to human error, and in some rare cases a legitimate excuse.) But seeing as how the state Supreme Court very quickly knocked Team Emmer down on this yesterday, the board made short work in turning him down.

At the same time, Magnuson made it clear that this issue could be grounds to contest the election: “I think we’ve given you our case of how you can avoid a dispute later on.”

Then on to a much meatier topic: How to deal with a recently enacted prohibition on “frivolous” challenges to ballots. (More on how that process works in this post on a Team Dayton motion on the issue.)

Secretary of State Mark Ritchie, who presided over the last recount, was highly reluctant to allow challenges to inflate and clog up the board’s work, as they did last time. However, both Magnuson and the state Democrats’ lawyer, Alan Weinbaltt (who is not a member of Team Dayton, but is involved with three state legislative recounts), did not want to allow challenges to be disregarded based on the decisions of local election official at the counting tables, who would apply different judgements to declare a challenge “frivolous.” And although the new regulations provided some direction over what that term means, there always remains some kind of ambiguity.

Supreme Court Justice Paul Anderson, as a member of the board, raised concerns about Equal Protection challenges under the Constitution, and pushed his concern that the board not leave themselves open to constitutional challenges. “I’m familiar with court challenges and how long they take,” said Anderson, who acted as a state Justice in the last recount.

Ultimately, the board eased its way to a new procedure: That ballot challenges deemed frivolous by the local officials will still be included in the running vote counts for Dayton, Emmer, or none of the above — while also being labeled and packaged separately for potential review by the board. This would leave only challenges that the local officials do not deem frivolous to remain out of the count entirely.

At one point, as they were headed towards this resolution, Ritchie asked Anderson whether his concerns would result in a separate “frivolous pile.”

“A frivolous pile, if that’s what it has to be,” Anderson replied. Over the course of the meeting, Anderson’s arguments won over the other board members, as the best possible way to deal with the legal problems at hand.

(It should be noted that Magnuson objected to the provisional counting of the frivolous piles, while Weinblatt seemed to be satisfied with the compromise.)

The court has not yet given final approval to the frivolous pile procedure, but ordered the civil servants to draw up final language that they do very much seem poised to approve.

Then the board proceeded to a request by Team Dayton, that the state officially keep track of all calls at the counting table on the challenged ballots, which Dayton co-lead attorney Marc Elias (previously Al Franken’s lead attorney) argued was the best way to avoid frivolous challenges.

Ritchie appeared to become a bit sympathetic to Elias’s rationale of preventing frivolous challenges as part of attempts to manipulate the media narrative about the count — but he repeatedly asked Elias how it could be done by the state “without adding work to the local election officials or to the computer person who has to add this.”

State Supreme Court Justice David Stras — who as a recent appointee to the court, did not have any involvement with the last recount — noticed that their previous solution on counting votes in the “frivolous piles” would in fact fill much of the need here. “On our new proposal anyway, the frivolous challenges would be added to the vote totals anyway,” Stras observed. “The only thing it would take out is the actual challenged ballots.”

My prediction: The board seems likely to give final approval to the “frivolous pile” solution, which would result in publicly counting a lot of potential challenged ballots, pending their later review. This alone would provide a disincentive for frivolous challenges, since they would no longer serve to manipulate the totals. The board will probably not go for Elias’s solution of publishing the calls on all challenged ballots, due to the legal gray areas and the simple problem of implementing yet another system to work on.

(Special thanks to The UpTake for video stream and running commentary.)

Late Update: As expected, the board reconvened after a lunch recess, worked on refining the “frivolous pile” process and how they would keep track of it as it goes along, and then adopted it as their official plan of action.