Ninety minutes after hearing oral arguments, the Minnesota Supreme Court rejected a petition by the Republican Party of Minnesota and Tom Emmer’s gubernatorial campaign to force counties to undergo a reconciliation in search of “phantom votes.” The Emmer team argued that election officials improperly counted votes on election night, but the opposition argued that they have followed the letter of the law.
The Supreme Court issued an order denying Emmer’s petition and said it would release its opinion later.
Diane Bratvold, an attorney for Emmer, argued that by law election judges should reconcile the number of ballots cast be reconciled with the sign-in roster at precincts.
All sides contend the law on counting ballots is outdated or unclear; current statute says ballots should be reconciled with signed “voter certificates” which are no longer used.
To make the process clear, the Secretary of State’s office has asked elections officials to use voter receipts – slips of paper handed to election judges after voters have signed in on polling place rosters. That was issued as a “rule” by the office, and has been in effect since 1982.
“Does the statute control the number of lawfully cast ballots or does the rule cited by the Secretary of State?” she asked. “Our position is clear: The voters sign as provided by statute not voter receipts as provided by the rule are the cornerstone for determining the number of lawfully cast ballots.”
Justice Alan C. Page said, “You only get a receipt if you’ve signed the register, so it strikes me that the practical effect is that you end up with the same number either way.”
“The trouble I’m having with your argument is that in order to get where you want us to go, it seems to me that what you are essentially saying is that the phrases voter certificate and election register in 240c20 are ambiguous,” said Justice Paul H. Anderson. “Your opponents, I think, argue that the phrases are obsolete.”
And that’s just what Mark Elias, attorney for DFLer Mark Dayton, said.
“I think that it is out of date and I think regulations are used to fill in where there is a statute that is either ambiguous or out of date,” he said.
One of Bratvold’s main arguments was that the legislature intended signatures to be counted with ballots, but Elias said that’s not the case. “It’s the signature that is crucial and there’s not signature on the voter receipt.
“The signatures issue is a bit of a red herring,” Elias said. “The purpose of having signatures serves an anti-fraud purpose. The purpose of the provisions we are talking about now are not about fraud, they are about counting.
“You aren’t going to count a pile of paper because it has a signature. It really is irrelevant to the issue today: What is the most effective way for a an official to conduct a ballot reconciliation in a polling place.”
Elias also added that the time to complain about the ballot counting procedures was before the election.
“The time to challenge the voting process is before the election,” he said. “I would urge this court to look at the fact… that this regulation has been used for a long time.”
He noted that Emmer had lawyers available and “this rule appears on the books. It’s not secret.”
Ultimately, the court agreed and denied Emmer’s petition shortly after oral arguments concluded. The decision means that the State Canvassing Board can meet on Tuesday to begin deliberation on the recount between Emmer and Dayton. Dayton currently leads by a margin of more than 8,700 votes.
The full hearing is available at TheUptake.