The race between gubernatorial candidates Democrat Mark Dayton and Republican Tom Emmer is officially headed to a recount after the State Canvassing Board met Tuesday to certify election results, as expected since election night. Emmer did not make headway in overcoming Dayton’s lead in the final pre-recount tally, but Tuesday’s board meeting indicated that legalese could drag out the process of certifying the winner of the election.
The official margin between the two candidates according to the State Canvassing Board is 8,770 in favor of Dayton, with Emmer currently holding 910,462 votes to Dayton’s 919,232 votes. That leaves a 0.42 percent margin between the two candidates, with anything under 0.5 percent automatically triggering a recount paid for by the state. Three state representative races also fell into that margin and will undergo a recount.
The gubernatorial recount will begin Monday, Nov. 29. Local counties must complete their examinations by Dec. 7, with the Canvassing Board scheduled to reconvene on Dec. 8. At that point they will update the final vote margins, and assess any challenged ballots. According to a tentative schedule released by Sec. of State Mark Ritchie earlier this month, the board’s examination of the election should be finalized by Dec. 14, leaving time for the eventual winner to assume office on Jan. 3 as long as the recount does not get extended through litigation.
Emmer and the state Republican Party filed a lawsuit prior to the Canvassing Board’s meeting in an attempt to delay the recount. The Supreme Court heard their case on Monday and handed down a decision in less than two hours to let the recount proceed without interruption. Emmer’s team had asserted that the number of ballots cast might not match the number of signatures, and wanted to force the counties to reconcile those figures. At Tuesday’s hearing former Supreme Court Chief Judge Eric Magnusson – Emmer’s lead lawyer for the recount – continued to push the issue despite the Supreme Court’s ruling, however members of the Canvassing Board were unwilling to make any decision to preempt the court’s decision.
The proceedings at the Canvassing Board meeting lasted four hours on Tuesday, devolving into technical legal questions on how the recount would proceed. A number of new regulations were passed to ease the recount process after the 2008 U.S. Senate race recount between Norm Coleman and Al Franken dragged into the summer of 2009. After that lengthy proceeding, it is now illegal to file “frivolous” challenges to ballots. While it may be illegal to challenge ballots without meaningful claim, how that exactly works is still up in the air. Whether a challenge is frivolous is currently up to local county officials to decide, but the board held a lengthy discussion about what exactly should be done with those ballots once they have been deemed frivolous.
Ritchie largely pushed for them to be excluded from the packets that the Canvassing Board will consider, since the point of the regulation is to speed up the recount process by limiting the docket of ballots the board must address. Magnusson argued in favor of campaigns’ rights to challenge improper ballots, with the implicit idea that disregarding challenges at the local county level could be grounds for future litigation. In the end, the board decided to include ballots deemed frivolous alongside legitimate challenges in the packet the board will receive when they reconvene on the Dec. 8, just with the frivolous ballots marked as such.
State Supreme Court Justice Paul Anderson often took the lead during the proceedings. He was insistent throughout that the board attempt to mitigate any potential complaints from either campaign in order to reduce the possibility of a post-recount lawsuit. He pushed lawyers on both sides to make sure they were satisfied with, or at the very least could live with the board’s decisions, frequently stating that he just wants to make sure the recount is conducted in a timely manner, and that the election results can be certified without subsequent litigation. He challenged the lawyers to let the proceedings happen without delaying the results. When the board debated on how many frivolous challenges would be filed by the campaigns, Anderson pushed the lawyers to live up to their oaths and not purposefully engage in that activity.
“We’ve been sternly admonished to not be frivolous and we take that seriously,” Magnusson said in response.
Patrick Caldwell covers Minnesota for The American Independent.