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 . . .
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?
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.
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.
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.
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.