Emmer-Dayton court decision: Three happy thoughts from Recountland

Dayton lawyer Marc Elias made his case before the Minnesota Supreme Court on Monday.
Pool photo by Jeff Wheeler
Dayton lawyer Marc Elias made his case before the Minnesota Supreme Court on Monday.

Teammate Jay Weiner continues to give MinnPost readers great coverage of the guv recount. A few thoughts from the back bench.

Happy Thought No. 1
For those cynics who have trouble believing (I struggle with this myself, even though I should know better, especially after the Franken-Coleman experience) that some judges are able to call them as they see them without following the party line of the party that got them their judgeships, the fact that the Republican-appointee-dominated (and Pawlenty-appointee-dominated) Minnesota Supreme Court rejected the MNGOP and Team Emmer reconciliation argument and kept the recount on track for an on-time departure should be noted, praised and cited as still more evidence that this is not Florida.

Happy Thought No. 2
Those who assume that every Republican challenge to the process is part of a scheme to extend the Pawlenty term and create an all-Republican lineup for a few weeks in January: I’m not saying you have been proven wrong, but so far you have very little evidence.

The recount process certainly entitles the side that is behind to look for any irregularities that might turn the situation around to their favor. The very technical argument yesterday about whether the vote counts should be reconciled with signatures versus receipts had very little chance of moving the vote tally very far in Emmer’s direction (see the statistical analysis at the bottom of this Pi-Press story), and, judging by their questions from bench, the Supremes seemed underwhelmed by the Repubs’ technical legal argument as well.

But the Repubs’ decision to take the reconciliation argument to the Supreme Court before the meeting of the State Canvassing Board, rather than throwing that argument in as a late monkey wrench, is more consistent with a theory of good faith on the timeline than the reverse.

The real indication of whether the Repubs are following a dilatory strategy will come later.

To really know how ReconciliationGate factors into the issue of stalling, we have to see whether the Supremes rejected Emmer’s petition yesterday on the merits (or lack thereof) of the reconciliation argument, or whether they wanted to keep the Canvassing Board process going but might be open to a fuller discussion of reconciliation later in an election contest. For example, yesterday’s ruling could simply mean that the justices want to let the Canvassing Board (which includes two members of the Supreme Court) rule on reconciliation and then deal with an appeal of that ruling.

Chief Justice Gildea’s terse order of yesterday doesn’t quite close the door to a future reconsideration of the argument based on a fuller record, but there’s not a syllable in it that suggests the court is drawn to the Emmer argument.

The big test of the Repubs’ intentions will come during the third week of December. If everything else stays on track and the Canvassing Board issues a final decision Dec. 14 that Mark Dayton got the most votes and is entitled to an election certificate, Team Emmer will have one week to file an election contest. If that happens, and if such a contest follows the normal process of a trial and perhaps an appeal, there is little chance of a final result by Jan. 3. As I have written previously, if a contest is filed without the Repubs having brought forward credible evidence that they have a chance to overcome Dayton’s lead, they will be playing with political fire.

Happy Thought No. 3
The fact that we are having another major statewide recount so soon after Franken-Coleman is not evidence that Minnesota’s election system is all messed up. So far, the two recounts are worlds apart, mostly because Dayton’s lead is so much bigger than any lead Coleman or Franken ever had in 2008-9.

On the contrary, if Minnesotans can look past the annoyance of two recounts in a row, there is plenty of evidence that Minnesota’s election process is among the best and getting better. After the last recount, which demonstrated that absentee ballots had been scrutinized differently in different counties, improvements were made in the process for accepting and rejecting absentee ballots. As a result, there is little talk of absentee ballots this time. I have little doubt that after this recount concludes, the Legislature will be asked to clean up and clarify the statutory language around reconciliation in time for the next election.

And, when the next big recount comes along, whether in two years or 20, the side that is behind will squint very hard and try to find something wrong with the process in that one, too.

Comments (9)

  1. Submitted by Neal Rovick on 11/23/2010 - 10:40 am.

    I have my doubts whether Pawlenty wants be drawn into an active overtime session as governor.

    He wants to enter full-time campaigning by occupying the same consequence-free celebrity big-mouth status as Palin, throwing verbal fire-bombs without actually having to work out the details and acknowledge the consequences of his decisions.

    Theoretically he will have to try to appeal to some of the same people who would be affected by a strongly activist squatter-in-chief.

  2. Submitted by Hénock Gugsa on 11/23/2010 - 11:55 am.

    @#1 says, “I have my doubts whether Pawlenty wants be drawn into an active overtime session as governor.”
    ——————————————

    On the contrary, I think that he is quite concerned about what he calls his “legacy.” Staying governor for a little while longer may not only bring in some new executive opportunities, but it could also put the kibosh on the DFL’s (and Dayton’s) plans.
    _________________________________________

    Regarding “…they [the Repubs] will be playing with political fire.”
    ————————————-

    I think the ever-petulant Mr. Tony Sutton is up to the challenge, by all counts. His threats/promises to leave no stone unturned are genuine enough. I don’t think he has heard of the mantra – “Caution is the better part of valor.”

  3. Submitted by Elizabeth Halvorson on 11/23/2010 - 01:14 pm.

    Mr Black: I don’t really agree with your analysis today. I watched the arguments and didn’t hear anything of substance from the Emmer side. In fact, the Supremes called Emmer’s attorney on arguing form over substance and made the point—themselves—that a receipt is proof of a signature. There is also–apparently–a process in place already for questioning rules, but the Emmer campaign chose not to follow it. So while you’re certainly correct that the SC might want to revisit the signature issue, I’d bet against it. (BTW, attorney Elias, for the Dayton campaign, made an excellent point. When asked if signatures aren’t the gold standard, he answered no, they’re not—counting pieces of paper is much easier and likely to be more accurate. Therefor, counting receipts is the gold standard.)
    As for the GOP not trying to spin this out, I can’t buy that, either. After all, they went to court with really nothing to go on. Why would they have done that if they weren’t trying to slow the process down? That’s the only thing that makes sense to me—that and trying to confuse citizens about the validity of our elections.
    You are 100% right about one thing—the impartiality of our judiciary. We can be very thankful for that!!

  4. Submitted by Josh Williams on 11/23/2010 - 01:21 pm.

    “But the Repubs’ decision to take the reconciliation argument to the Supreme Court before the meeting of the State Canvassing Board, rather than throwing that argument in as a late monkey wrench, is more consistent with a theory of good faith on the timeline than the reverse.”

    I would say instead that introducing it now only demonstrates that they probably recognized it was a weak argument from a legal standpoint–that is, unlikely to succeed, or to move the needle in Emmer’s direction even if it did.

    But consider the public perception benefit: By introducing it now, they are simply keeping their message in the headlines: the election was tainted by fraud. I have no doubt that the Supreme Court’s outright rejection of the claim will have little influence over the folks who will cry foul later and insist on an election challenge.

  5. Submitted by Paul Udstrand on 11/23/2010 - 01:44 pm.

    //But the Repubs’ decision to take the reconciliation argument to the Supreme Court before the meeting of the State Canvassing Board, rather than throwing that argument in as a late monkey wrench, is more consistent with a theory of good faith on the timeline than the reverse.

    I Hate to say it Mr. Black but your optimism may be bordering denial. You case in inherently illogical. If the reconciliation case is weak and thin, then why would it stand a better chance of wrenching the works in later than sooner? Would it not meet the same fate at any date? The fact that the Republican even tried to toss such a thin wrench, whether it be now or later cannot be construed as an act of “good faith”. They’re more than 8,000 behind, let’s be honest, if they had any integrity they would simply let the recount run it’s course. It’s absolutely clear that the Republicans would shut this down in court if they could. The fact that their on the weak side of the law doesn’t allow us to assign them virtue for failing.

    People keep saying the Republicans are “entitled” to their day in court, etc. This just demonstrates how low the bar has descended. The Republicans are not expected to respect the process, and they are not expected to abide by the vote. Instead they are expected to exhaust every legal loophole and sham they can find in a futile attempt to delay the recount, and obscure the election results because they’re “entitled” to do so.

    Here’s an idea, why do expect political parties to conduct themselves with some integrity? Why don’t we expect them accept defeat when they lose elections instead of trying to nullify elections that don’t go their way? There is no question of voter fraud or serious irregularity that threatens to overturn these results. Emmer doesn’t have a case, if he had any real honor or integrity he would shut down his legal team and simply monitor the recount.

    Having said all that, I must that like Mr. Black, I am encouraged by the process thus far.

  6. Submitted by Bernice Vetsch on 11/23/2010 - 04:46 pm.

    “They’re more than 8,000 behind, let’s be honest, if they had any integrity they would simply let the recount run its course.”

    I’d go a little beyond that, Mr. Udstrand, and say that if they weren’t interested in delaying Dayton’s swearing in for their own purposes, they would simply concede and congratulate the new governor.

  7. Submitted by Paul Udstrand on 11/24/2010 - 07:03 am.

    I agree with Bernice. And I apologize for all the typos in my previous post.

  8. Submitted by William Pappas on 11/26/2010 - 12:44 am.

    Mr. Black, you are just as clueless on this matter as most democrats are to republican strategy. I guarantee they will be two steps ahead of you as they delay the recount and allow Pawlenty to pass some quick legislation from the republican legislature and Senate. Statements from Tony Sutton leave no doubt that they’ll stop at nothing to find votes or delay the inevitable. Sutton has also used this forum to accuse the Secretary of State of fraud and will no doubt find a reason behind all of this that supports their favorite vote suppressor, voter ID. In fact, I think Magnason’s career has been a bit tainted by his quick association with Emmer’s recount and gives me the creeps when I think how republican dominated this supreme court is.

  9. Submitted by Eric Henly on 11/26/2010 - 01:51 pm.

    The PiPress had what seemed like a pretty strong quote from Emmer regarding his potential future challenges. I wonder how much was a PR effort to make him seem reasonable for now and how much was him performing a reality check.

    More importantly – where is the AP on this? Usually they call an election once they are certain one candidate will prevail (or even before that). It seems to me that a call on the race from the AP either now or after the recount has been certified could be used to apply pressure on Emmer to give up the chase…

Leave a Reply