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Recount Redux: How this year's might look the same -- and a bit different -- from 2008

An attendee of the DFL election event watches the returns Tuesday night.
MinnPost photo by Terry Gydesen
An attendee of the DFL election event watches the returns Tuesday night.

Welcome to Recount 2.0.

It looks as if the Mark Dayton-Tom Emmer race has tumbled into a recount, and here’s how it will look similar to the 2008 U.S. Senate recount — and how it could differ.

It will look alike because the recount again will occur throughout the state — out in the counties and key cities that have election officials. It won’t be a centralized recount.

There will be local canvasses of the votes, with each jurisdiction re-examining its results. A hand recount of all 2 million votes is likely to begin later this month. We’ll probably hear more about the details from Secretary of State Mark Ritchie’s office later today.

Yes, there will be challenged ballots because voters occasionally fill in the ovals on their ballots sloppily. But the issue of absentee ballots that so dogged the 2008 U.S. Senate recount will likely be minimized because of changes made by the Legislature during the 2010 session.

Key among the changes: Absentee ballots this time 'round were viewed and accepted by centralized absentee ballot boards in each county. No longer did tired poll workers late at night have to quickly determine if absentee ballots followed the various guidelines.

Also, signature mismatches, an element in the Senate recounts election contest trial, have been eliminated. Code numbers needed to match between the voter’s ballot application and ballot envelope. So penmanship won’t enter into this event.

It also will look alike because some of the key players will be the same.

Secretary of State Mark Ritchie, who was re-elected Tuesday, will be at the center of the process. A lightning rod for the Minnesota Republican Party because of his progressive politics, Ritchie will be on the spot again. On Election Day, when the GOP charged that there was an “unusual” number of glitches in voting machines, party officials evoked the 2008 recount and implied that Ritchie’s office was to blame.

With pre-election posturing from conservative groups about potential “voter fraud” in Minnesota — never proven as a widespread problem — you can be sure that every move by Ritchie and his staff will be closely scrutinized by the GOP.

If 2008 is any guide, however, the DFL will also grow frustrated with the Secretary of State’s Office. During the Franken-Coleman recount, some Dems believed Ritchie bent over backward to be “fair” to Coleman. The guy couldn’t win.

Tony Trimble, who was Coleman’s lead lawyer during the Senate recount, looks as if he will be Emmer’s top advocate. At this writing, it is unclear who will represent Dayton, but it could well be that former U.S. Attorney David Lillehaug, Franken’s lead local lawyer during the 2008 battle, will be involved. Expect Charlie Nauen, who also worked on the Franken effort, to dive in.

We can also expect some of the same vitriol. If the spirit of Paul Wellsone hung over the 2008 recount and the prospect of a 60th Democrat in the U.S. Senate, then there will be many clouds and possibilities hovering about this recount.

For one, it could mean total control of Minnesota government by the Republicans, what with their take-over of the House and Senate. On the flip side, a Dayton win would block that monopoly power.

Also, key leaders of the Minnesota GOP, such as party Chairman Tony Sutton and Vice Chair Michael Brodkorb — and their most loyal followers — have not gotten over Franken’s 312-vote victory over Coleman. They do not want to lose again, or be outworked or outprepared or defeated by the DFL’s use of voter data, should the recount come down to challenged ballots.

As Sutton was quoted in this morning’s Star Tribune: "It looks like it's recount part II: And this time it's personal.”

The only  inaccuracy in Sutton’s comment is that it was personal last time, too, between Coleman and Franken.

Remember, too, that Tom Emmer’s campaign manager is Cullen Sheehan, who was Sen. Coleman’s campaign manager. Sheehan knows these ropes well.

Let’s not forget another Minnesota recount — the 1962 gubernatorial race. While some nostalgia buffs during the Franken-Coleman recount longed for “the good old days” of 1960s civility, there was nothing polite at all about that confrontation between incumbent Republican Gov. Elmer L. Andersen and Democratic challenger Karl Rolvaag.

Like the 2008 campaign and this 2010 battle, there was a third-party candidate, William Braatz of the Industrial Government Party, a socialist group. Braatz didn’t garner the support that Dean Barkley did in 2008 or Tom Horner did Tuesday, but his 7,300 votes meant that Andersen and Rolvaag tied with 49 percent of the vote.

After the first returns, Rolvaag was ahead by 58 votes, but a politically partisan and divided State Canvassing Board refused to certify the election. As in 2008, the State Supreme Court intervened. With most of its members appointed by Andersen, the Court allowed 10 counties to adjust “obvious errors” in their original counts. That decision caused the election to flip to Andersen by 142 votes, and thus gain the Republican-leaning Canvassing Board’s certification.

In 1962, there was no trigger for an automatic recount, as in 2008 or today, and there was no law establishing a three-judge panel appointed by the Supreme Court to oversee an election contest. Rolvaag sought and gained a statewide hand recount only after filing an election contest petition. In that election, 63 percent of the 1.25 million votes were originally cast by hand — not by machine — in a state that was still largely rural.

Encouraged by their respective political parties to be picky, when the recount got under way, volunteers for both candidates challenged the validity of 104,000 ballots — including 7,000 absentee ballots — a far higher percentage than votes challenged at recount locations in the 2008 recount.

To avoid the appearance of political bias, Supreme Court Chief Justice Oscar Knutson allowed the two campaigns to jointly select a three-judge panel to rule on the challenges and conduct the election contest trial. This laid the groundwork for the later enactment of a law that made way for the statutory creation of three-judge election contest panels.

After months of legal spats and feisty counting across the state, the three district court judges, now hearing the case in 1963, ruled on a pared-down total of about 4,000 remaining challenged ballots. After determining voter intent on each ballot, the judges declared Rolvaag the winner by 91 votes. That process took 139 days, extending to March 25.

Long, but not as long as the 35 weeks of the Senate recount.

This morning there was a buzz about what happens if the recount and a potential  election contest last into January when Gov. Tim Pawlenty’s term is set to expire. An early read is that Pawlenty and Lt. Governor Carol Molnau stay in office. The Minnesota Constitution, Article 5, Sec. 2., states: “The term of office for the governor and lieutenant governor is four years and until a successor is chosen and qualified.”

That successor would be named after a recount and after the State Canvassing Board, led by Ritchie, rules. The Canvassing Board does include Supreme Court Justice Paul Anderson, who was active among the high court judges in having strong opinions about the 2008 recount, and Hennepin County Judge Denise Reilly, who was one of the three judges on the election contest trial.

But this much we know. If, in fact, the margin is 9,700 votes, that’s a wide valley for Emmer to cross and big chunk of territory to maneuver to flip an election. Despite 2008 and Franken’s come-from-behind win, it is difficult to flip a result.

Still, this much we also know: In 1998, when Independence Party candidate Jesse Ventura beat Republican Norm Coleman and DFLer Skip Humphrey, vote tallies jumped a lot between Election Night and the in-county canvassing of votes.

In the end, when it was official, Ventura beat Coleman by 56,000 votes. But between Election Night and the final tally, Coleman’s total jumped by 10,409 and Ventura’s by 12,431 votes.

Precincts report late. Math errors are made. Ballots are found that weren’t previously counted.

Ain’t democracy grand?

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Comments (7)

Democracy is grand, and very well reported on by this piece. Well done, Jay.

I have a brief question for Tony Sutton. What makes this recount "personal".

Yes! Nicely Done, Jay!

But sadly, as we all know, your approach will not sell newspapers or catch the attention of television viewers. So what we will hear, instead, are endless, breathless claims about how the election was stolen by some skulduggery of Mark Ritchie and the DFL.

They can do it on the cheap by dusting off and trotting out the e-mails and news stories from 2008-09. Just change a name or two and, with precious little cost or effort, they'll have a ready made screaming scandal!

(Of course the claims that Franken, Ritchie and the DFL party stole the senatorial election away from Norm Coleman are still coming on strong - didn't a Republican functionary make that exact claim within the past few days?)

The recount will, of course, come out in Mark Dayton's favor (which leaves me feeling sorry for him considering the legislature he'll be dealing with) -

Way to go, my fellow Minnesotans! Elect someone to take a very different approach to state government than we've had for the last eight years, but elect a legislature that will make changing any of King Timmy's policies impossible. We really are a "confederation of dunces," aren't we?

Of course the Rebs will be doing everything in their power to stretch out the recount and keep King Timmy as governor so that they can "ram down our throats" (which in this case is apt) every draconian cut in spending they ever DREAMED of making before Governor Dayton can be sworn in and start exercising his veto power. Watch for your schools to suffer massive cuts (have to punish those uppity teachers) and for massive state employee layoffs (SEIU needs to be beaten into submission as well).

No doubt there will be very quick and deep (and EXTREMELY ill advised) tax cuts for the fabulously wealthy, as well (probably with miniscule cuts to the rest of us, perhaps even rebates as a smoke screen for how much money they're handing each other).

I think my fellow Minnesotans will be SHOCKED at how much worse their lives can become and at how rapidly it can happen. Welcome to the new (and hopefully temporary) state of REPUBLIKHANISTAN.

I think the 9700 or so vote differential will make this recount a lot different. In Coleman-Franklin and a couple hundred vote differential, intellectually it wasn't a stretch to see a 300 vote swing. Now it will take 5000 votes. If the margin stays that big, there will be pressure on Emmer to give up once the recount is over.

I highly recommend Jay's book "This is not Florida". It shows how objective and fair the Judges were in the last state-wide recount.

Jay:

If it all runs smoothly, it won't provide much material for a book, "Recount 2.0"

Greg (#3), "The recount will, of course, come out in Mark Dayton's favor". Why is that? Are you laying the groundwork for a claim that Emmer stole the election should he win? Statistically, <0.5% is not much, which is why a recount is triggered.

You may have heard that Hennepin County had a vote tally reporting irregularity. It was a whopper, so it was easily spotted. We have an engaged electorate, but a voter turn out of 117% is suspicious. A similar irregularity, less grand in scale, is certainly possible in one or more of Minnesoa's 87 counties.

Somebody correct me if I am wrong, but:

I seem to recall that the infamous "Hennepin County discrepancy" in the senatorial election of 2008 was between the electronic records and the saved paper ballots, and I also seem to recall that the discrepancy was resolved so as to avoid disenfranchising voters, namely by assuming that some paper ballots went missing, rather than by assuming that some electronic records were created out of nothing.

I concede that it's a very bad thing to lose paper ballots, but it may be even worse to "correct" this mistake by discounting all electronic records not backed up by paper ballots - thereby possibly disenfranchising hundreds of voters who cast perfectly legal ballots.

Of course, creating fake electronic records of ballots out of nothing would be a serious crime, one that I hope could be punished with a long prison sentence. However, I don't believe this particular crime would be easy to pull off. Although it might be easy for a crooked election official to make hundreds electronic records disappear by deleting them - which is why paper ballots are so important - I don't believe it would be easy for a crooked election official to create hundreds of electronic records out of nothing by faking them. You would have to make your fakes complex enough to seem real; you would have to refer to the list of legitimately cast ballots often, to avoid creating any duplicates; and you would have to do all this without anybody noticing.

Somebody correct me if I'm mistaken about any of this.

But here's my point: However you may feel about how the Hennepin County discrepancy was resolved, it did NOT happen that 117% of Hennepin County VOTERS were counted, which is what Steve Rose seemed to imply. The total number counted was perhaps 117% of the paper ballots recovered after the election, but no more than 100% of the electronic records of these ballots.

Again, somebody correct me if I'm wrong.