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The GOP complaint on the governor's recount: what we know and what we don't

In the latest maneuvering in the 2010 governor's recount, we know a little bit more this morning about the Republicans' effort Wednesday to sow suspicion over the state's election process — and about just how strong the GOP's case is for, potentially, delaying the start of a recount.

Here's what we know, don't know and aren't exactly sure about as we gaze over the GOP petition and the attendant rhetoric . . .

Keeping receipts
The major allegation in the GOP/Tom Emmer petition is that the "reconciliation" process wasn't adequately or lawfully carried out in a handful of counties.

The GOP contends that there are instances where election judges did not, as required, match up the number of votes cast with the number of signatures on the polling sign-in rosters. Thus, there could be more votes cast than voters who signed in, the complaint suggests, as did GOP Chairman Tony Sutton in his news conference. He raised the specter of "phantom votes."


And he offered this potential relief: If there are more votes than voters who signed in, the extra votes get "triaged" — that is, pulled out and not counted.

More importantly, the petition asserts that until reconciliation is completed in all 4,136 precincts, the recount shouldn't go on. The GOP attached affidavits from 11 election judges who say the matching procedures were not followed in their precincts.

But oddly — conveniently? — the GOP doesn't mention an administrative rule that election officials we've talked to say is the prevailing guideline for reconciliation. And it is so much the method used on Election Day — and has been for years — that election judges are trained to conduct reconciliation that way in their counties and even by the Secretary of State's Office. For now, Ritchie's office isn't commenting, what with the litigation and all.

But, for those of you keeping score at home, it is Minnesota Rule 8200.9300, Subparagraph 10.

It was adopted way back in the mid-1990s, as far as the folks at the Legislative Library can tell, and it states that election judges in precincts need not match the sign-in sheets with the votes cast. Rather, election judges "shall determine the number of ballots to be counted by adding the number of return envelopes from accepted absentee ballots to the number of voter's receipts issued …" [OUR EMPHASIS ADDED]
 
By our count, nine of the 11 affidavits submitted by election judges state that, indeed, receipts were counted, therefore their precincts followed the rule.

I chatted this morning with Patty O'Connor, director of taxpayer services in Blue Earth County, an elections official for 16 years and the co-chair of the Minnesota Association of County Officers elections committee.

In the 53 precincts in and around her Mankato area, receipt counting is the first line of reconciliation in matching votes with voters, O'Connor said. Only if there is a discrepancy, do they go to counting signatures as the backup. "The rule allows that," she said.

With pressures on election officials to get results out quickly on Election Night, "Do you know how long it would take before we get anything [results] by counting signatures? … For the judges to come in and count signatures, that would take hours," she said.

O'Connor said judges are told to check the receipts with the votes cast during the day, so they're keeping track. And, she said, so far, in her review of her county's precincts, the receipts and votes cast match up.

I'm told that administrative agencies make rules — and that rules interpret and implement laws. Whether those rules supersede a law, it appears, is what the Supreme Court may have to determine.

Fact is, it seems as if many, if not most, counties now use receipts as proof of reconciliation. Will that be good enough for the Supreme Court?

Pulling votes
The remedy of yanking out votes — if the reconciliation numbers are off — is, as the Star Tribune said this morning, a "chilling" prospect.

O'Connor said she hasn't had to perform such an unfortunate task "for years." She says there has been solid accuracy ever since each precinct got its own vote-counting machines, the kind that suck in your cardboard ballot and note its acceptance. With vote-counting machines in each precinct and the receipt-counting method, the numbers have matched up, she said.

Indeed, O'Connor said, if anything, she has seen the opposite of what the GOP is claiming — that is, more people signing in than voting. In such cases, people apparently come in, sign in, get a receipt but don't vote.

Get Ritchie
Which leads to a consistent theme in the Republican strategy since Election Day 2010 and, actually, since Election Day 2006: When in doubt, throw darts at Secretary of State Mark Ritchie, accuse him of not managing elections well and, if you're on Twitter supporting Sutton, refer to Ritchie's "ACORN past" and make disparaging charges about his supporters.

At Sutton's news conference and in the complaint, the GOP cites a 2009 Star Tribune story.

That story was about overall voter registration in the state, not people who may have voted earlier this month. Plus it was all part of a lawsuit filed by the Minnesota Majority, whose data has been considered off-base by most county attorneys as it pertained to other assertions about alleged felon voters during the 2008 election. Among the plaintiffs in that lawsuit, led by Minnesota Majority, was Rep. Tom Emmer.

Here's the lawsuit (PDF) which was, by the way, dismissed in less than two months by the Supreme Court in a six-page opinion (PDF) signed by — you guessed it — former Chief Justice Eric Magnuson, who is now Emmer's lawyer.

Rocks 'n' roll
Ever since Election Day, Sutton and GOP lawyer Tony Trimble said they would look "under every rock and stone" for votes, much like the Al Franken legal team did in 2008.

But, frankly, the Franken lawyers were seeking to increase the universe of votes, not decrease it. Franken's team sought more votes by increasing the pool with wrongly rejected absentee ballots.

In theory, the Sutton approach would be to eliminate some votes by this plucking of votes already cast.

Tony Sutton
Tony Sutton

Chairman Sutton might want to be careful what he wishes for: What if every county and every legislative district had to go through this triage? Presumably, any reconciliation wouldn't just affect the govenor's race but all races on the ballot.

On Nov. 4, Steve Perry of Politics in Minnesota calculated that in six critical House races, the GOP won by an aggregate of fewer than 700 votes. Could it be that rejiggering results statewide would reduce the Republicans' control of the Legislature?

Sutton, asked about that, said "let the chips fall" where they may.


A curiosity
Just how much will the GOP and Emmer forces use the Canvassing Board to make legal arguments, as the Franken team did in 2008. Then, the issue was including wrongly rejected absentee ballots. It was a righteous argument of inclusion. Franken lawyer David Lillehaug won the argument, aided by the fair decision of former Supreme Court Chief Justice Magnuson, now Emmer's lawyer.

Now, the argument seems to be that election officials didn't follow the law. This sounds a lot like the Coleman effort that election officials didn't consistently evaluate absentee ballots in 2008. This is a process argument, not an enfranchisement argument.

Let's remember, two members of the Canvassing Board are experts on this issue of the process of elections: Supreme Court Justice Paul Anderson and Hennepin County District Court Judge Denise Reilly. Anderson is the one who wondered aloud during the final argument in the Coleman-Franken case about whether there was enough "chaos" in the election universe to overturn the actual margin of the election. There may have been some aberrations, Anderson said, but, otherwise, the election was fair.

Now Sutton clearly believes there was too much chaos in 2010, or wants to create the notion that there was chaos. That, despite most county auditors saying that this was a smooth election. Sutton has said from the start his party won't get "rolled again." He is trying his best to make sure that he shows his party stalwarts that the GOP is fighting this with all its might.

What's clear is that 2008 continues to stick in Mr. Sutton's craw, and those around him. Indeed, there are exhibits attached to Wednesday's complaint that include transcripts from 2008's election contest even though the calendar has turned and the election is different, the laws have improved and the 2009 lawsuit about voter registration was summarily dismissed by the Supreme Court.

Ah, that High Court. The lawyers are taking this to a Minnesota Supreme Court that is now conservative leaning, with three Pawlenty appointees balanced by liberals Helen Meyer and Alan Page.

It may be true, as Dayton's recount manager Ken Martin asserted Wedneday, that Emmer has "a mountain" to climb to overcome Dayton's unswerving lead. But the GOP has its ropes and caribiners ready to go. At the very least, Sutton's going to yodel every chance he can, ensuring that the echoes find their way, Twitter and yon.

We await the Dayton response, and Tuesday's Canvassing Board meeting.

Jay Weiner, who won the Frank Premack Award for his coverage of the 2008 Coleman-Franken recount, is the author of "This Is Not Florida," a new book about the legal wrangling.

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Comments (33)

Mr. Sutton seems to have a weak grasp of probability and statistics.

The virtually certain outcome of the random pulling of ballots would results in percentages very similar to those already reported for the precinct.

I must be missing something in this extra-votes "triage" proposal. How would it be determined which are the "extra" votes?" Or, more to the point, how would it be decided which candidate should lose how many votes?

Jay,

Was Emmer's attorney, Former Chief Justice Magnuson, involved in this petition (officially, I know you can't know the back room discussions) or just Trimble, the GOP's attorney?

Neal, I had the same thought. Even if one granted the very dubious prospect that there were 8,000+ more votes than voters (fine, go on a wild goose chase for these phantom votes, I for one have full faith in our elections; just do it in a timely fashion), there would be no way to make up the difference. But, I suspect that they know this- this is all about creating enough phony smoke to make people think there must be a fire. A very noble use of the courts, the election process, and the publics time and trust.

Wow...republicans really have a hard time accepting reality, don't they? Here we go again, with another protracted waste of taxpayer money. I thought they were all up in arms about government spending?

Neal (#1):

What is a virtual certainty?

Are we going to resolve the recount with probability and statistics, or are we going to count the votes? Election judges need to verify vote totals against the total number of voters. That is the way the game is played (by the rules).

1) "Thus, there could be more votes cast than voters who signed in ...extra votes get "triaged" — that is, pulled out and not counted."
-------------------------
I don't get it. I thought that the Repub's central strategy was for a low voter turn-out. That must not have happened, and now they are complaining about extra votes not being counted!!??
____________________________________________

Regarding reconciliations ...Minnesota Rule 8200.9300.Subparagraph 10
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It is being disputed now the same way Mr. Emmer questioned DWI laws after he himself was affected by it personally.
____________________________________________

Regarding Tony Sutton and his shenanigans ...
---------------------------
We probably need divine intervention.

Ah but Neal, Sutton isn't trying to get an A in his statistics class. He's trying to sow doubt and fear about voting in Minnesota. So even if Dayton is declared the winner, he has a bunch of motivated conservatives howling about an election stolen from the Republicans. You can bet they will be motivated to vote next time.

This is what they did two years ago with the Senate race where you still have conservatives stating there was fraud in that election even though Coleman's own lawyers didn't find any or provide any proof in court.

Great, thorough analysis. I am interested to see what approach the Dayton camp takes. There is a process for challenging administrative rules, and this isn't it. This is sour grapes litigation at its finest--everybody knew the rule, it has been published and followed for a generation, you can't just hold your complaint about it in abeyance until you lose a squeaker.

William, the statute has election officials "randomly" removing ballots from the box until the numbers match. Believe you me, that would make for some fascinating 5pm news footage.

Pondering "triages" and "phantom votes" ...

The term triage suggests an action that takes place in advance for a patient while the patient is still alive. One does not do a postmortem triage. What would be the point?!

And "phantom" votes ...

They are non-existent. All voters sign in before they vote, so no ghost voters from Christmas Past could have all-of-a-sudden appeared to make sure the republicans are down by thousands of votes.

Lousy article. Sham analysis. Partisan tripe. Coming from a guy who wrote so well on the Coleman/Franken recount.

This appears to be an unconscionable attempt to keep Pawlenty in the governor's office long enough to serve a few days with a Republican legislature. Oh, what mischief will be wrought!

I can only hope that the GOP's dissing of the whole Minnesota voting system and of the faithful people who work on our elections, basically an insult to the citizens of this state, will eventually come back to haunt that GOP.

Steve Rose writes
"Are we going to resolve the recount with probability and statistics, or are we going to count the votes? Election judges need to verify vote totals against the total number of voters."

Surely you know the votes will be counted. Neal wasn't suggesting anything else, either. In fact, he was asking a simple question that demands an answer: if you find there are more votes than signatures (itself only an allegation, without any evidence, as far as I can tell*), how do you know which ballots to 'triage' out of the pile? Neal surmises that if you randomly select ballots for removal, the ballots removed will have a similar distribution across candidates as the total pool of ballots. That's where the statistics & probability come in: in predicting that a subset of the population will be representative of the entire population.

In that scenario, how do Sutton, et al, expect to make up a gap of 8700+ votes? I suppose if you can get this 'triage' conducted only in precincts where Dayton won by large margins, you might be able to close the gap; but surely the Repubs want the same rules applied across the entire state - in order to determine the properly elected governor - and not just apply the rule where it benefits them most.

The Republican theory seems to be that over voting occurred more in Democratic precincts than Republican precincts. Assuming that to be the case, selecting votes on a random basis would tend to hurt Democrats more than Republicans, and incidentally not hurt other Republicans on those ballots, who because they were running in DFL districts according to my initial assumption, lost by significant margins.

Strictly speaking, an administrative rule promulgated under a statute cannot supersede a statute. But a court could conclude that following the rule constituted substantial compliance with the underlying statute and hold that to be good enough. The reasoning for that is a little shaky, I admit, but ruling otherwise could mean that validly cast votes would have to be discarded, and involves other, more serious, and even constitutional issues.

"surely the Repubs want the same rules applied across the entire state - in order to determine the properly elected governor - and not just apply the rule where it benefits them most."

I share your optimism. I can't imagine the GOP would want to limit this extra scrutiny to heavily DFL leaning districts. Such a request could never ever happen...

(Will be happening soon)

@#11 says ..."Lousy article. Sham analysis. Partisan tripe."
---------------------------

I respectfully disagree. The protagonists in this story (the republicans) have cast themselves in bad light through their words and their actions. The reporter/analyst has not shown any bias. How could it be that you praise him for his work on the Coleman/Franken fracas and not on this one? Has Jay Weiner suddenly turned into Dr. Jekyll & Mr. Hyde?!

"surely the Repubs want the same rules applied across the entire state - in order to determine the properly elected governor "

I think you're giving them way too much credit.

As O'Connor is quoted as saying, there are typically more voters than votes in a precinct. This happens if a person checks in (gets a receipt) but fails to submit a ballot. O'Connor did not theorize on how the opposite might occur. How would it occur? I'd say that any precinct with that issue earned itself an investigation.

I think Neal Rovick is only half right. Yes, randomly tossing ballots would leave the percentages the same in any given precinct...but changing the totals could alter the aggregate vote count statewide. Here's a simplified example:

Imagine a precinct in which Dayton got twice as many votes as Emmer. If you randomly toss out ballots, Dayton will lose two votes for every one Emmer loses.

So precincts that have a lot of votes to begin with, or where one candidate won by a large margin, could affect the outcome.

The law is the law...most of the time...kind of.

Yes, indeed, I'll be absolutely amazed to see the reasoning that would accompany a decision that allows an administrative bureaucrat to create rules that trump law.

BTW; as I recall, SoS Ritchie admitted to 17,000 phantom votes in 2008. Evidently not only did that not warrant a follow up investigation, it didn't move him to consider fixing the problem.

Before anyone starts talking about eliminating votes, it needs to be pointed out that there is no evidence whatsoever that the number of votes exceeds the number of voters. The claim here is that the wrong method was used to reconcile the number of votes with the number of voters - that the number of voters should be based on the number of signatures and not on the number of voting receipts. Given that a voting receipt is generated by the signing of the book - a process that is done in the open with multiple voting judges present - that number should be the same. While it is possible that in an election with several million votes there may be some minor discrepencies, the idea that the numbers could be off not just by 8700, but by enough to overturn Dayton's 8700 vote lead is ludicrous. This makes no sense at all, unless the only purpose is delay and disparagment of the election process in Minnesota.

(#19) Yes, it is true that if only votes in heavy Dayton precincts were tossed, in your 2 to 1 ratio, at least 26,000 votes would have to be discarded to get Emmer into office.

But hey, I guess the reverence for democracy resides with the Democrats, so all kinds of delaying actions are probably in the books.

Mr. Swift,

There's also a law that says if you want to challenge an administrative rule, that challenge needs to be brought in the Court of Appeals. Considering that this rule has been around for a generation, there is no reason that anyone should be asking the Supreme Court should rule on its legality on an "emergency" basis.

The law is the law!

"BTW; as I recall, SoS Ritchie admitted to 17,000 phantom votes in 2008. Evidently not only did that not warrant a follow up investigation, it didn't move him to consider fixing the problem."

Back when Minnesota Majority filed its soon-to-be summarily dismissed lawsuit in 2009, that number was 30,000. That number has steadily decreased precisely because Ritchie has investigated and worked to fix the problem. Then problem, of course, being that people move, and die, and get married, and register to vote for the first time, and with several million voters, it takes time to get everyhing sorted out.

Christopher, I don't know what law you're referring to, and you haven't bothered to provide a source, but giving you the benefit of the doubt I wonder how you'd react if the GOP followed the law; take it to appeals, then (either by themselves or by the Democrat party, depending who wins) on to the state Supreme Court.

Since, in your opinion, there is no emergency, it should be all done, and T-Paw could be on his way, by June or July...that be OK with you?

The problem with counting ballot receipts for reconciliation is that they aren't traceable. Sometimes voters are handed two ballot receipts, because they tear off together and the judge doesn't notice. There's no accounting mechanism for the receipts. At the end of the night, if election judges find more ballots than used recepipts, they could (in theory) just grab a few out of one pile and put them in the other and presto! Everything balances.

Not good enough.

There is a reason the law requires ballot counts to be compared to roster entries: It prevents fraud. Why is it so hard to follow the law? Minnesota's system is wide open as it is we should at least adhere to the few integrity measures we have!

I'm not sure, but if you decided to vote in some elections, but not the Governor's race, wouldn't you end up with more voters than votes?

Given the two choices for Governor, it wouldn't surprise me if a lot of people took a pass.

If precincts did reconciliation the GOP way — ignoring receipts and going back through the rolls to check for signatures (which is how you get a receipt in the first place) — then the GOP could howl about how long it takes for Richie to get results reported on election night.

Mr. Swift,

My point is that this suit could and should have been brought to the Court of Appeals, pursuant to Minn. Stat. §14.44 so that the legal process could, in the fullness of time, resolve any purported deficiencies in a rule. A rule that has been on the books and has governed the counting of elections since at least 1983. (https://www.revisor.mn.gov/data/revisor/rule/1983/1983-8200.pdf)

Coming into the supreme court with your hair on fire about long-established (presumably bi-partisan, having never been revised or challenged) reconciliation rules that have governed the counting of countless ballots over nearly twenty years is... disingenuous at best, and in any event an improper way to challenge the validity of a rule.

It is an affront to the legal system to benefit from a rule (via the expedient publication of election results) for years upon years, but then when some slim reed of benefit might appear to you, suddenly it is an emergency. Emergency rulings make bad law.

The GOP waived its right to complain about the application of the rule in *this election* because it tacitly agreed to its application by not challenging it before it could have done any "harm," and because it did not challenge the rule through the proper legal means. They (or anyone) can challenge the rule at their leisure, through the proper means, but their challenge should not apply to this election.

Too bad the GOP can't accurately blame Mark Ritchie for a rule that has been in place, untouched, through the entire the Kiffmeyer era. Not that accuracy really poses an impediment.

Not every votes counts then. If the ballots in my precinct were to be rejected, knowing that I voted properly, can I sue the GOP or the State because my vote was not counted?

Two points:

Yes, you can challenge a rule on the ground that it conflicts with the terms of the applicable statute or exceeds the rule making authority granted by the applicable statute. In fact, you have no right to challenge a rule until it affects or is about to affect your rights.

Of course the Republicans want to cherry-pick the counties involved, for precisely the reasons discussed above: any truly random selection of ballots on a statewide basis is likely to very closely reflect the total vote. You can't make up almost 9,000 votes that way.

Emmer cannot contest the election on the grounds that the number of votes cast exceeded the number of people signing the voter registration lists and absentee ballots. It's not listed as a ground for challenging an election in MS s. 209.02

https://www.revisor.mn.gov/statutes/?id=209.02

Assuming there is some discrepancy in the votes and registration, all that would prove is that some voters maybe just forgot to sign. There could be many explanations. None of this proves any particular ballot was cast fraudulently, which is what they are trying to imply. I hope somebody on the defense puts a stop to this baloney before we get led on a wild goose chase to keep Timmeh hold-over governor through the next session.

Wonder if Tony Sutton has ever studied risk management. Seems amusing that he's willing to "let the chips fall" in six district House races decided by close margins while scrambling to find 8755+ more votes for a state-wide office.