Tom Emmer Loses Court Fight On Key Argument In MN-GOV Recount

December 7, 2010 12:46 p.m.

The Minnesota Supreme Court just handed down its full opinion on a key issue that Republican gubernatorial nominee Tom Emmer had been trying to fight on during the current recount — and which he might have continued to fight in a post-recount lawsuit. And as the opinion shows, they appear to have done nothing less than shoot him down entirely.

Emmer has tried to make an issue of cases where precincts have more votes than the total number of people who signed in on the register. But, Emmer didn’t just lose the argument in the courts — he lost it big, and is running out of legal avenues by which his campaign could even try to contest the election once the recount is over.Going into the recount, Democratic nominee Mark Dayton led by 8,770 votes, or 0.42%. While this is within the 0.5% needed to trigger a statewide recount, many observers had doubted that Emmer could pull ahead. 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 recount nearly finished, and the board set to begin adjudicating just a small number of disputed ballots, Emmer is certain to lose the certified count. However, he had been working to build legal momentum on other issues — most notably this voter-reconciliation issue. On Friday, he declared: “This egregious disregard for election laws calls into question the integrity of one vote per person.” (Note: Small differences of this kind are not necessarily a product of systematic or even individual fraud, but can happen for various reasons of human error.)

In mid-November, before the recount properly began, his campaign sought to first reconcile the votes with the signatures. That reconciliation would have involved randomly removing votes in precincts with overages that could not be accounted for. In arguments before the state Supreme Court at that time, Team Emmer argued that the administrative rules and widespread practices of providing for reconciliation through the use of poll worker-issued voter receipts rather than via the signatures was not legal under the statute.

The court ruled against Emmer in less than two hours after arguments. At the time, the court said that they denied Emmer’s petition quickly in the interests of allowing the recount to proceed, and that a full opinion would follow later.

Emmer had said last week that he needed to know what the court’s reasoning was. And indeed, there were a number of reasons the court could have cited for its decision that would have left Emmer some wiggle room — for example, they could have ruled that this was a legitimate legal issue, but only for a post-recount election contest and not during the recount proper. But instead, they have ruled that Emmer is wrong on the issue itself, and that the current practices involving the voter receipts are valid under the statute:

Our review of the purpose of the statutes, relevant prior legislation, and the longstanding administrative interpretation establishes that the Legislature intends the processes prescribed by Minn. Stat. § 204C.20, subd. 1, and Minn. Stat. § 206.86, subd. 1, to be based on either the number of signatures on polling place rosters, or on the number of voter’s receipts. Because we conclude that the practice petitioner claims is in error, that is, determining the number of ballots to be counted on election night by counting the number of voter’s receipts, is permissible under both Minn. Stat. § 204C.20 and Minn. Stat. § 206.86, we hold that petitioner has not demonstrated any “wrongful act, omission, or error” that provides a basis for relief under Minn. Stat. § 204B.44. The petition must therefore be denied.

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