Minnesota Supreme Court denies Emmer petition, clearing way for Canvassing Board action

The Minnesota Supreme Court this evening swiftly denied Rep. Tom Emmer’s petition seeking to force some county election officials to redo the way they reconciled votes in the 2010 general election.

The Court’s ruling (PDF) was succinct and without an opinion for now.

It said that the Emmer petition alleged “that the Minnesota State Canvassing Board was about to commit an error in certifying the correctness of the results” of the Nov. 2 election.

The five justices who heard the case denied that assertion and denied the petition.

“So as not to impede the orderly election process,” Chief Justice Lorie Gildea wrote, the court’s opinion will be filed later.

The ruling was a huge defeat for Emmer, who has been seeking ways to either gain more votes, reduce Dayton’s lead or show that election officials statewide somehow didn’t follow proper procedures.

The ruling clears the way for the State Canvassing Board to meet Tuesday and get a statewide governor’s recount under way.

The Court’s ruling came barely 90 minutes after lawyers for both sides argued before the five justices, who seemed to be skeptical of Emmer’s argument, advanced by lawyer Diane Bratvold, that a state rule — in place since the early 1980s — should be the prevailing way for election officials to keep track of the number of voters who cast votes.

After Election Day, and behind by 8,755 votes, Emmer wanted the so-called “reconciliation” of votes to be done using the signatures on precinct rosters.

But DFL candidate Mark Dayton’s lawyer, Marc Elias, and a lawyer for the Secretary of State’s Office said the signature method hasn’t been used by all counties for nearly 30 years.

Elias called the signature issue “a red herring.” Signing in has to do with fraud. And this case — and the outcome of the recount — is about counting votes, he said.

Later, Elias said Dayton’s lead is “insurmountable.” Emmer lawyer Tony Trimble suggested his client could pick up a couple of votes per precinct out of the state’s 4,136 precincts.

But the numbers aren’t bearing that out. So far, in random post-election reviews of hundreds of sample precincts, Emmer has picked up a total of 3 votes and Dayton 18. Somehow overcoming a nearly 9,000-vote lead seems difficult, at best.

The five justices hearing the case today were Chief Gildea, Associate Chief Justice Alan Page, Justice G. Barry Anderson, Justice Christopher Dietzen and Justice Helen Meyer.

The other court members — Justices Paul Anderson and David Stras — sit on the State Canvassing Board, which will meet Tuesday at 10 a.m.

The drama of Tuesday’s board meeting could be an attempt by former Chief Justice Eric Magnuson to seek some similar relief from the board that his colleagues failed to get today from the High Court. Magnuson is one of Emmer’s lawyers. He was a member of the State Canvassing Board in 2008 during the Al Franken-Norm Coleman recount.

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.

Comments (17)

  1. Submitted by Sue Halligan on 11/22/2010 - 05:56 pm.

    Well Hallelujah and thank you to the Minnesota Supreme Court.

  2. Submitted by Hénock Gugsa on 11/22/2010 - 06:05 pm.

    “So as not to impede the orderly election process,” Chief Justice Lorie Gildea wrote, the court’s opinion will be filed later.
    ————————————-

    I hope that this opinion will include some concern (in the majority’s mind) about whether the petition should be castigated as frivolous and a waste of the court’s time.

  3. Submitted by Greg Kapphahn on 11/22/2010 - 06:18 pm.

    Let’s face it. At this point, these tactics have nothing to do with the likelihood that Emmer can win and everything to do with seeking to create space for a Pawlenty hangover in which the Republican-controlled legislature can ram down the throats of the state of Minnesota every crazy thing they ever thought of with King Timmy gleefully signing it all.

    Their protestations to the contrary are just their usual snake oil smoke and mirrors.

  4. Submitted by Paul Brandon on 11/22/2010 - 07:52 pm.

    Sanity at last!

  5. Submitted by Peter Vader on 11/22/2010 - 09:11 pm.

    Is there any doubt, were the vote totals reversed, that Emmer et al. would be losing their minds publicly, violently, and continuously?

    Of course there is not.

  6. Submitted by Beryl John-Knudson on 11/22/2010 - 10:56 pm.

    Justice leaves its footprint here…restoring a little faith in a voting process jack boot-trampled too often lately. Thanks from this voter.

  7. Submitted by Dennis Tester on 11/22/2010 - 11:38 pm.

    Emmer’s lawyer: “But your honor, we have evidence that in several precincts, there were more votes cast than there were voters! And after all, reconciling signatures to votes is the law in this state!”

    The unbiased Court: “Details, details. Quit yer whining, you bleeping republican.”

  8. Submitted by Hiram Foster on 11/23/2010 - 06:03 am.

    “Let’s face it. At this point, these tactics have nothing to do with the likelihood that Emmer can win and everything to do with seeking to create space for a Pawlenty hangover in which the Republican-controlled legislature can ram down the throats of the state of Minnesota every crazy thing they ever thought of with King Timmy gleefully signing it all.”

    One message I took from the court’s handling of this case is that they will not be a party to any attempt to engage in legal proceedings only for the purpose of delay.

  9. Submitted by Richard Schulze on 11/23/2010 - 08:32 am.

    Mr. Tester:
    Five of the seven Justices of the “unbiased court” are made up of Republican appointees. Justices Gildea, G. Barry Anderson, Dietzen and Stras (recused) have been appointed to the bench by Governor Pawlenty. Governor Ventura appointed Helen Meyer and Justice Alan Page was elected to his seat. Governor Arne Carlson appointed Paul Anderson (recused). In total 3/5 of the Justices yesterday were Republican appointees.

    Justices Stras and P. Anderson have recused themselves because they will sit on the State Canvassing Board and may have to judge if any contested ballots are in the recount.

    This is a good example of what happens when political parties and citizens who don’t actually understand a topic start to persuade each other.

  10. Submitted by Paul Udstrand on 11/23/2010 - 08:36 am.

    Wait, didn’t Emmer say he wouldn’t abuse the courts and try to delay the recount? And the day he said that filed lawsuits against two counties for not releasing requested information, and then this. Someone’s gotta say it: Emmer lies.

  11. Submitted by Paul Landskroener on 11/23/2010 - 08:38 am.

    To comment #3: I’m not sure the Republicans will cram through bad legislation during any Pawlenty overtime. But what is at stake is the early access to expanded Medicaid coverage. The new governor has until Jan. 15 to opt in, and after that date the new legislature will have to approve it. That’s what the delay is mostly about; that, and undermining Dayton’s legitimacy, much as they did to Franken.

    To comment #7: The “evidence” Emmer’s lawyer refers to are small discrepencies between the number of receipts and ballots cast. I’m an election judge, and it is not unusual to have one or two more ballots cast than receipts. Often this occurs because a voter leaves after getting a ballot but before voting, resulting in more receipts than ballots cast. Sometimes a judge will fail to collect the receipt before giving the ballot resulting in more ballots cast than receipts. (That happend in my precinct this year to one voter. We know it was one of the first ten voters because we discovered the discrepency immediately and noted it in an incident log.) In the former case, counting signatures won’t help. In the latter, it can. The point is that signature counts may be appropriate where necessary to reconcile, but there is no good reason to require signature counts in every precinct as Emmer requested. There is NO evidence of large discrepencies indicating systematic fraud or malfeseance.

  12. Submitted by Paul Udstrand on 11/23/2010 - 09:14 am.

    //To comment #3: I’m not sure the Republicans will cram through bad legislation during any Pawlenty overtime.

    You people have to wake up, these guys have no integrity, they have a vicious agenda, and they will do almost anything to pursue it. They believe they are infallible, and if they “win” they get to what they want regardless of public sentiment. Republicans held the vote open for THREE HOURS in order to twist enough arms and bribe enough senators to get their pharmacy bill passed. They ran candidates that talked about violently overthrowing the government if they don’t what they want.

    You didn’t believe Pawlenty really meant it when he signed a no new tax pledge, but he did. You didn’t believe he’d pursue a “mandate” despite having gotten way less than 50% of the vote, but he did. And now you don’t believe Republicans really will try to tie up Obama, and cut 6 billion dollars worth of state services and programs… but they will. Pull your heads out of the sand and get this: you are under attack, and you need to wake up.

  13. Submitted by Thomas Swift on 11/23/2010 - 09:48 am.

    Richard, I realize that as a member of the scary smart, reality based community it may seem to you that no one could possibly both understand the issue at hand, and yet come to a conclusion that doesn’t meet with your approval…but I can assure you that is not the case.

    The court has ruled that in this instance at least, it is acceptable for a bureaucrat to create an administrative rule, for his convenience, that supersedes state law.

    Evidently, in Minnesota you don’t need to identify yourself, and your signature is voluntary as well. The integrity of your vote isn’t important as long as you’ve voted the right way.

  14. Submitted by Sheila Ehrich on 11/23/2010 - 09:55 am.

    Mr. Tester,

    It’s too bad you weren’t able to watch the courtroom action in the UpTake yesterday. The method Emmer’s side wants to use to reconcile the votes hasn’t been used for 30 years. If you had been able to watch the UpTake’s coverage you would have seen the judges asking Ms. Bratvold why they should revert to counting signatures when clearly that method has not been used for a number of years and the history of the change in how votes are reconciled can be tracked legislatively and through the rule-making process. This was not a partisan decision nor was it done on a whim. The facts were obvious.

  15. Submitted by Thomas Swift on 11/23/2010 - 12:02 pm.

    “…the history of the change in how votes are reconciled can be tracked legislatively…”

    Right, just as long as you’re not looking for a bill, or a vote, or even a committee hearing to change or replace the law, or anything like that. Go ahead and track away.

  16. Submitted by Hénock Gugsa on 11/23/2010 - 12:42 pm.

    @# 13 – “Evidently, in Minnesota you don’t need to identify yourself, and your signature is voluntary as well.”
    —————————————–
    There’s that broad brush stroke and the ensuing unsubstantiated claim.

    I don’t know about others. But speaking for myself and my household, prior to getting the ballot and actually filling in our votes, we gave our names, and we signed our names in the register at exactly the spots we were supposed. They did not ask for i.d. but we were prepared for it. As an aside, I’m glad that they did not ask for our i.d. because we would have felt we live in a police state!

    Voting is a personal, civic responsibility that we should personally safeguard the same way we are responsible to always be alert for credit card i.d. thefts. Ceding this responsibility to any government body is tantamount to giving away one’s freedoms!

  17. Submitted by Richard Schulze on 11/23/2010 - 04:18 pm.

    Tom, at least you have Tony Sutton to help validate your thoughts, feelings and opinions about this election. Once again Tom, try to be more concise in your sarcasm. It doesn’t improve with greater length.

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