Recount kickoff: 10 things to look for and scratch our heads about

Here are 10 things to watch for and wonder about as the Mark Dayton-Tom Emmer statewide governor’s hand recount begins this morning at 9 a.m. in all 87 counties.

No. 1: Challenges
Dayton is now unofficially ahead by 8,770 votes. Recount history in the United States over the past 25 years shows that number is insurmountable.

So, how many ballots will the Emmer side challenge, claiming the election machines missed something?

And, given the discussion at the State Canvassing Board last week, how many of those challenges will prove be “frivolous”?

The more challenges there are, the more we’ll see if the Emmer side is up to some mysterious strategy that has yet to reveal itself.

There were more than 6,500 challenges in the 2008 U.S. Senate recount with 2.9 million votes. More than 5,500 wound up being off-the-mark, with 1,000 finding their way to the State Canvassing Board.

Watch for the number of challenges at 8 p.m. Monday night on the secretary of state’s web site.

No. 2: Then, go to the REAL scoreboard
Dayton’s recount team is going to keep track of “the call at the table.” This is the important — and more accurate — tally to watch. Experience shows it will be the “real scoreboard,” not the secretary of state’s website.

The Dayton side has announced it will post its count each morning after the day before. So, the campaign promises its exact tally beginning 9 a.m. Tuesday morning off of Monday’s first day of recounting.

As in 2008, the Dayton observers at the hundreds of recount tables statewide will keep record the number of ballots cast and counted for the candidates, the number of challenged ballots, the number of ballot challenges considered “frivolous” and — here’s the key — the call at the table by the election official for each ballot.

In 2008, the Al Franken recount team was the only one that monitored this “call at the table” by election officials.
In so doing, it knew which ballots were legitimately challenge-able and which challenges were bull. Because of that, Franken’s side knew it was picking up votes. No one else did.

What’s the significance of that? Read on . . .

No. 3: Watch the media’s behavior and reporting.
As Dayton lawyer Marc Elias pointed out last week — and throughout the Franken recount — separating out the challenges serves as an incentive to a candidate to deliberately (and even unjustifiably) challenge ballots.

It skews the daily public count. It creates a false perception of how the recount is proceeding.

If Emmer challenges many votes it will make it seem as if he is “gaining ground” on Dayton…if the news media cooperate with this counting standard.

For instance: assume there are 10 votes counted. The election judge at the table rules 7 for Dayton, 3 for Emmer. But Emmer’s team challenges four of those decisions for voter intent reasons based on marks on the ballot. It wants the State Canvassing Board to rule on these challenges later.

The vote is thus reported on the SOS site as Dayton 3, Emmer 3, four challenges. But we know from 2008 that the Canvassing Board backs up the “call at the table” on almost every occasion.

This year, as a result of legislation passed after the 2008 recount, “frivolous” challenges are considered no-nos. Still, because of a decision made by the Canvassing Board decision last week, those “frivolous” challenges will be separated out and get a second look by the board when they meet again.

What’s frivolous? Any challenge “based upon an alleged identifying mark other than a signature or an identification number written anywhere on the ballot or a name written on the ballot completely outside of the space for the name of a write-in candidate.” It’s a challenge in which the voter’s intent is clear, but the candidate wants to willy-nilly create a challenge and game the system.

But because Secretary of State Mark Ritchie felt it would be too burdensome on election officials statewide, his office isn’t going to tell us how many challenges were ruled frivolous until Thursday, four days after the recount begins.

In 2008, the news media reported the secretary of state’s tally on a regular basis. It didn’t factor in the way the Coleman team, in particular, made challenges to ballots that were clearly Franken votes.

It made it seem as if Coleman was maintaining his lead, which he wasn’t.

Eric Magnuson, one of Emmer’s lawyers, said last week: “If we make a challenge just to make a challenge, in the end it doesn’t do you any good.”

Watch the challenges and see if the former chief justice is true to his word. Furthermore: Hold mainstream media to the fire on what its results mean.

No. 4: Are there REALLY lots more votes than voters, and are they explainable?
This is Emmer and the Republican Party’s only substantive issue so far. Is there something fundamentally inaccurate with the voting system because some counties use voter receipts to count the number of voters and others use the sign-in rosters?

Does the recount reveal a massive amount of votes that don’t match up with voter rolls?

We think not. Almost every election official in the counties thinks not.

The Supreme Court, at least on the surface, thinks not. It denied Emmer’s petition to alter the recount to count all the signatures.

Still, is there enough of a problem to cause real public suspicion? If indeed there are more votes than voters, how many are there?

Enough to change an 8,770-vote gap? Or just enough to sow the suspicion the GOP might be seeking?

No. 5: The Supreme Court opinion on “reconciliation”?
The Supremes didn’t seem very sympathetic to the Emmer side’s argument about the process of tracking the number of voters who vote.

Most key election officials statewide say tracking the number of voters who get those tiny voter receipts is just as accurate — if not more so — than counting the signatures on a precinct roster.

Still, the Court could throw a real wrench into the process with its full decision, which could come any day. Or it could put the matter to rest.

It represents some potential hope for Emmer. Some.

No. 6: Politics of it all
The more time passes, the more reality will sink in. Particularly by Thursday, when the secretary of state’s tally will catch up with Dayton’s, and we will know officially just how much Dayton’s 8,770-vote lead has changed, if at all.

Time heals all conspiracy theories, or should. Already, even Emmer and former Sen. Norm Coleman are suggesting a fair recount could be the end of this episode. Maybe.

Emmer told the Pioneer Press’s Bill Salisbury Wednesday, “I don’t want to put myself or others through a futile process.” But he left wiggle room to fight on if that “reconciliation” issue gets some legs.

Star Tribune columnist Nick Coleman — who usually has nothing nice to say about a Republican (or anyone, for that matter) — killed Rep. Emmer with kindness Sunday. He praised Emmer for showing reason by not wanting to pursue futility.

Norm Coleman told the Pioneer Press Saturday “It’s a recount required by law. (After that), [Emmer] has to make a determination based on the outcome. I’ll respect his decision … I have great respect for Tom, and all he’s doing is following the law.”

Still, wiggle room, but Coleman didn’t say, a la GOP chairman Tony Sutton, “We won’t get rolled again.” Everyone seems relatively tempered.

No. 7: Why all the lawyers for Emmer?
Besides wondering what the legal end game is for Emmer, the Dayton side is privately wondering why the GOP candidate had such an army of lawyers at the State Canvassing Board meeting last week.

If the idea is to have a nice, little recount, lose, and then move on gracefully, how do you explain all the suits from D.C. and the usual stable of GOP attorneys and a former Supreme Court Justice on the payroll? That was a whole lotta billable hours if you’re gonna give up easily.

What’s up their sleeves? Whatever it is has caught the Dayton side’s attention. Franken’s lead trial lawyer Kevin Hamilton is expected back to town this week from Seattle; he’s preparing for a trial, just in case.

No. 8: Data Practices Act requests
Remember back in early November when Emmer’s lawyers sent a series of Data Practices Act requests to elections officials statewide seeking all sorts of data? A couple of counties responded that the requests were too voluminous, were sort of fishing.

The names of all election judges, photocopies of all voter registration applications, copies of all election night voting machine printouts. And more. All legit. All time-consuming. But understandable.

Here’s the head-scratcher. We’re hearing from some elections officials that the Emmer team hasn’t made an effort to pay the fees to acquire all the data it requested. In most counties it adds up to about $800, one election official told us. Chump change for a political campaign, or you’d think.

Why hasn’t the Emmer side paid? Are they satisfied that there are no irregularities statewide?

No. 9: Or is it about the money?
The Campaign Finance Board ruled Wednesday that money raised during the election can be used for recount purposes. The two sides can raise more money, too, of course.

But can Emmer raise the sorts of dollars a full-fledged election contest would require . . . millions? Without cash — and lots of it — there’s no way to sustain an election contest, which could last for months requiring a stable of high-priced lawyers and a boatload of legal fees for discovery and witness subpoenas. In 2008, Franken and Coleman spent a total of $20 million on the recount and trial.

Can someone who is behind by nearly 9,000 votes ask a donor to fund a losing effort? What issue can arise in the next week for Emmer that would be worth investing in?

No. 10: Let the recounting begin
It seems as if we’ve been here before, doesn’t it? Except this is much different. This time, the 60th seat in the U.S. Senate isn’t at stake.

At this point in 2008, Norm Coleman led Al Franken by 215 votes. Dayton’s lead over Emmer is 40 times larger than that. That hand recount, with 800,000 more votes in the set — and before any absentee ballots were counted — saw a change of 264 votes.

Emmer needs more than that. Lots more. Which is why the next two weeks will be filled with less urgency than 2008, but just as much curiosity.

Jay Weiner can be reached at jweiner [at] minnpost [dot] com.

Comments (8)

  1. Submitted by Paul Udstrand on 11/29/2010 - 09:11 am.

    Will Emmer conduct himself honorably? I’ll believe it when I see it. More likely he’s simply trying establish himself as being reasonable so when he unleashes his challenges it won’t look like he’s being hyper partisan. The idea is create the following narrative: “I’m not being unreasonable, I just have to make sure the process is working”. The idea would be to create the impression that he’s acting out of necessity rather than choice.

    On the other hand, there is a less conspiratorial explanation for the big legal guns. Emmer could simply be putting up a show for the base so they don’t look like they rolled over. He can say: “Look, we had the biggest guns in the country keeping an eye on this, it’s just the way the vote went”.

    One thing is for sure, Emmer will make the decisions. Emmer will calculate which course of action is least damaging to Emmer depending on his future plans, whatever they are.

  2. Submitted by Tim Walker on 11/29/2010 - 09:18 am.

    Great analysis, Jay.

    I’ve bookmarked this page and will refer to it often as the recount progresses this week.

    I, too, have read about how (almost) all the GOPers say they will not prolong this recount by filing an election contest if it’s futile. That’s good, it would be the honorable thing to do.

    But then they, like Emmer did when he spoke to the PiPress, always give themselves some wiggle room. And that worries me.

    I’m also worried every time I read a quote from Tony Sutton. Being the head of the state GOP, he’s got a lot of sway. And he’s got quite a mouth, too. (I swear, that Sutton is such a rabid partisan, I’ll bet he foams at the mouth even when he’s asleep!)

    Every time I hear him talk, I really wonder if the GOPers have really, truly, forsaken pulling out every legal stop to drag this out past January 3, or even January 15.

    Could it be that the state GOP will file an election contest itself, over the public “ojections” of Emmer? The public face would be that the state GOP is filing the contest against Emmer’s wishes (but not really).

    That strategy would be designed to take the heat off of Emmer, and try to deflect the public’s frustrations with a prolonged election fight away from Emmer. Risky, to say the least. But I wouldn’t discount it.

  3. Submitted by Greg Kapphahn on 11/29/2010 - 12:57 pm.

    I, too, expect an election contest filed by the GOP (if not Emmer). The bogus issue(s) over which they will file will result in the death of the term “red herring” to be replaced by the oh-so-serious (but ultimately totally specious) claims they raise.

    Or perhaps we’ll just replace the term “red herring” with the term “Republican election contest.”

    If the GOP files, seemingly over the opposition of Mr. Emmer, it will hurt them tremendously at the ballot box, especially if it results in a King Timmy hangover with very destructive results for the average citizen of the state.

    But Mr. Sutton, et al, are such true believers (ultimately in nothing but themselves and their own ample bank balances and miniscule tax rates), that they are absolutely convinced, despite ample evidence to the contrary, that average citizens will be cheering them on.

    Like the huge collection of conservative “inside the beltway” media hacks, they so love to read and listen to, they take themselves to be humble representatives of the average citizen without ever bothering to objectively survey the general public to see how far away from them WE stand on all of this.

    Then again, they own enough of the media that they probably expect they can just “spin” whatever half-rotten sow’s ear they come up with into a silk purse and the public won’t notice the rotting green edges or the putrid smell.

  4. Submitted by Pat McGee on 11/29/2010 - 02:24 pm.

    I’m surprised not to have heard anything about the conditions of the recount. In Hennepin County they are next to the escalators in a very busy public area. Hardly conducive to concentration and the seriousness of the task at hand.

  5. Submitted by Hiram Foster on 11/29/2010 - 05:18 pm.

    I don’t expect the Republicans to file lawsuits should they lose the recount as seems very likely indeed. At the end of the day, there just isn’t a legal reason to give the side with the fewer votes the victory.

  6. Submitted by Don Medal on 11/29/2010 - 05:52 pm.

    Greg, I think you underestimate the MinnGOP’s ability to spin. The voters elected a State House and Senate dominated by the GOP. (change!) Those voters are likely to only be mildly irritated by a Emmer power grab if it can be clothed in newspeak (1984) as keeping the system honest. I think the whole thing is driven by donations. They can’t win from here. But how much is a few weeks of GOP control worth to the donors financing this? My guess is this goes on as long as there are donors and the issue isn’t yet resolved by the Minn Supreme Court.

    Allegations of election fraud when none is found benefits only the enemies of democracy long term. No matter the party, the intelligent response would be to turn away from those who make such claims, as we would to a enemy sympathizer during war. But wait, that would require that intelligent consideration be part of the electoral process.

    Oh well.

  7. Submitted by Kevin Judd on 11/30/2010 - 12:38 am.

    Thanks for the analysis, Jay. Your comment about Emmer’s army of lawyers is a reminder that a recount is very expensive, for all concerned. It is hard for me to see the upside of keeping this army of lawyers on pay (at hourly rates) if the vote totals do not close. Remember that in the middle of the last recount, Norm Coleman took another job.

    How would I react if I were a well-healed Republican donor, and someone asked me to shell out 7 figure amounts to keep the recount going for another month? I suspect that I’d rather use the money to jump start the Senate campaign, or to pay for Pawlenty’s next trip to New Hampshire.

  8. Submitted by David Willard on 12/03/2010 - 06:28 pm.

    When voters register on election day, they are sent postcards to their sworn addresses. Over twenty-thousand of these were returned as “addressee unknown” to the post office in 2008. Has anything changed regarding eligibility for same day voters since 2008? It seems the Dems and their media cheerleaders in Minny (Strib, Minnpost)want to recount till they win, (Franken). More votes than registered voters in certain precincts? No Problem!

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