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Worried DFLers exploring options if GOP tries stalling after governor’s recount: Then what?

Legal scenarios abound for post-recount proceedings, should Mark Dayton (shown Election Night with running mate Yvonne Prettner Solon) face a court challenge if the Canvassing Board certifies him the winner.
MinnPost photo by Terry Gydesen
Legal scenarios abound for post-recount proceedings, should Mark Dayton (shown Election Night with running mate Yvonne Prettner Solon) face a court challenge if the Canvassing Board certifies him the winner.

There is a presumed Republican strategy, neither confirmed nor denied publicly by any party officials, but strongly hinted at. It goes like this:

If Mark Dayton wins the recount in the governor’s race next month, no matter how large his margin, the GOP will fight the Minnesota gubernatorial recount, thereby delaying the inevitable.

In response to that suspicion, there is the real DFL fear: Dayton’s swearing-in gets pushed deep into the winter, allowing Gov. Tim Pawlenty to remain in office and solidify GOP control of state government and its agenda, not to mention Pawlenty’s own presidential ambitions.

Would the GOP dare block an insurmountable Dayton lead?

Already, some DFL leaders and Dayton backers are predicting this.

“Tom Emmer’s legal team is lining up to delay the inevitable,” said Rep. Ryan Winkler, a lawyer, “preparing to drag our state through the mire of a protracted lawsuit that only seeks to defer the will of the people.”

On Wednesday, DFLers, including Dayton’s recount manager Ken Martin, said any GOP effort to delay Dayton’s inauguration — assuming he keeps his lead — would be “a strategy designed to hijack the will of Minnesota voters.”

Tom Emmer
MinnPost/Terry Gydesen
Tom Emmer

Some Republicans appear to be substantiating that suspicion … at least unnamed GOPers. Wednesday’s Star Tribune quotes one “Republican operative”: “I don’t think there’s any downside to keeping this recount going on as long as possible … If we keep the process going, there are opportunities for us in the upcoming legislative session.”

If so, just how will the DFL fight back, not only politically, but with its own legal bazookas?

Let’s stipulate — let’s even hope — that the 2010 governor’s recount will go smoothly, and there will be no major legal or political battles, that, as Republican candidate Tom Emmer said Tuesday, “the process will go forward” and all will be right with Minnesota. Anything’s possible.

But it’s also possible that we’re in for weeks of skirmishing. With that in mind, let’s walk through a few scenarios — all speculative, of course — with the help of election law and civil procedure experts.

Let’s assume that when the State Canvassing Board completes its work on Dec. 14, following a week-long hand recount of 2.1 million votes, the recount remains as it stands today, with DFLer Dayton holding a nearly 9,000-vote lead over Emmer.

The board then would certify Dayton’s victory and tell Gov. Pawlenty and Secretary of State Mark Ritchie that the DFLer is entitled to the critical election certificate.

Again, this assumes that there are no allegations of game-changing irregularities, such as the Hennepin County misreporting of data on Election Night, and some other, so far, minor kerfuffles. The absentee ballot issue, which garnered so much attention, seems to be irrelevant this time.

It also assumes no fancy legal footwork before the Canvassing Board by Emmer’s new lawyer, former Supreme Court Chief Justice Eric Magnuson, who, by virtue of being on the board in 2008, is a Canvassing Board expert.

All big assumptions, but bear with us.

Let’s continue to speculate: Despite Dayton’s wide margin — wider than any in the nation’s recent recount history — the Minnesota Republican Party files an election contest petition, a lawsuit, challenging the outcome and alleging massive problems with the election, problems that they claim could add up to the nearly 9,000 votes that Emmer needs to overcome Dayton.

That contest filing would effectively block Pawlenty and Ritchie from signing the precious election certificate.

Under the state’s election contest law, Emmer could wait up to seven days to file the petition. That would take us to Dec. 21, a mere 13 days before Dayton’s scheduled inauguration. Or, as in the Coleman lawsuit, the Republicans could file the contest petition within 24 hours, speeding up the process.

No matter when the GOP files its election contest law suit, the state could tumble into a legal battle like the one we saw in 2008 between Norm Coleman and Al Franken.

If that truly is the GOP’s wish, what can Dayton and his gaggle of lawyers do?

Seek the certificate
Even if it looks as if the GOP will contest the election beyond the Canvassing Board and seek a lengthy trial, some election law experts believe the DFL could jump the line and pursue Dayton’s election certificate despite the GOP legal challenge.

Franken lawyer Marc Elias tried that during the U.S. Senate recount. The Minnesota Supreme Court shot him down, saying Minnesota’s courts determine who wins, but it is the U.S. Senate that determines who goes to Washington, D.C. Election “irregularities” in a Senate battle are ruled on by the U.S. Senate itself. But GOP lawyer Tony Trimble said earlier this week that irregularities in a governor’s contest must be determined by a state court.

Still, Dayton lawyers could offer some imaginative arguments. Longtime St. Paul election lawyer Alan Weinblatt — a DFL attorney, but not representing Dayton — posited this scenario: The Dayton lawyers go automatically to the Minnesota Supreme Court, jumping over any GOP petition or any lower state court, seeking an order forcing Pawlenty and Ritchie to sign the election certificate.

“You’re talking about something that is really unique,” Weinblatt said. “But it would take a set of facts that would persuade the Supreme Court that the best interests of the state permitted and required judicial intervention … The judiciary has great respect for the legislative process. In an ordinary case, the judiciary would be reluctant to step in. One would have to show this is not an ordinary case.”

According to the Minnesota Constitution, “The term of office for the governor and lieutenant governor is four years and until a successor is chosen and qualified.” In addition, the Constitution talks about changes in office coming on that first Monday in January. Surely, Dayton’s lawyers would argue that once the Canvassing Board has certified his victory, Pawlenty’s successor has been “chosen” and Dayton’s time has come.

Would the Supreme Court, now led by Pawlenty appointed Chief Justice Lorie Gildea, agree?

William Mitchell College of Law professor Raleigh Levine suggested that an election certificate could be issued on an interim basis — allowing for a new governor — but eventually revoked, if the contest plays out and Emmer wins in court.

Levine, an election law expert, hearkening back to the Coleman-Franken recount, said, “I think it would be an uphill battle [to win an election certificate] while the contest is pending … The certificate of election is supposed to be issued to the winner of the contest. But, if a court were to decide that the contest was frivolous or without merit or even that there was very little chance of it succeeding,” then, she speculated, a court could issue the certificate to Dayton, if only in the interim.

Rule 11?
No one in Dayton’s camp is talking publicly about strategy, but we know they are looking a bit at Rule 11 (PDF) of the Minnesota Rules of Civil Procedure and wondering how it might apply to any election contest filed by the Emmer side.

Lawyers don’t prefer to play the Rule 11 card, which includes sanctions to the other side for a certain kind of “frivolous” courtroom shenanigans. Still, among the clauses in Rule 11 are those that say that any attorney who files motions or advocates in court does so knowing that the information is “not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation” and “the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.”

If Dayton is winning by 9,000 votes and there has been no substantial uncovering of voting fraud or irregularities during the six weeks between Election Day and the end of the Canvassing Board’s work, would an election contest qualify as “frivolous” litigation, subject to sanctions by the courts?

No expert can testify that any recount in the past 25 years in the United States has flipped nearly 9,000 votes. And, some thoughtful statistician could opine about the thousands of ballots that would be needed in this three-way gubernatorial election to garner nearly 9,000 more for Emmer.

Still, an election contest lawsuit would not necessarily be frivolous, said civil procedure experts. The courts deal with many cases that wind up being dismissed or tossed out on so-called summary judgment, but most aren’t considered “frivolous.”

University of Minnesota professor Brad Clary said that “even if no one else has ever won after that margin,” if Emmer’s lawyers have some “reasonable basis” to file the contest law suit, “the mere fact that nobody else has ever managed to win such a recount wouldn’t make it, in and of itself, frivolous.”

Some lawyers, judges and professors we talked with pointed out that Emmer’s hiring Tuesday of former Supreme Court Justice Magnuson could be viewed as a signal reducing the chances of a “frivolous” election contest filing. Lawyers are fined and can receive professional sanctions for such irrelevant filings.

Even DFLer Winkler, who fears a “baseless legal case” from Emmer, said: “I was glad that they hired Eric Magnuson … he cares about the public trust and the integrity of the system. I suspect a big part of what he’s going to do is tell his client when to stop.”

But that’s speculation, too. Could it be that that Emmer bought credibility in bringing in Magnuson, Pawlenty’s former law partner, the sort of credibility that would allow a former chief justice to announce that an extended election contest is the only just path to resolve this recount?

Other ways
Frivolity aside, a more standard way to speed up the process is to simply and swiftly bring a motion to dismiss the Emmer case, lawyers we interviewed said, or the more exacting motion for summary judgment, complete with affidavits pointing out the facts of the case.

There’s no evidence Emmer can prevail, the Dayton side would argue. There’s no chance of relief; no matter what, he can’t catch up, they would say. The goal: A court will dismiss the contest before a trial.

But there’s another matter, and that’s the venue itself, and the timing of it all.

In the Franken-Coleman case, the three-judge panel required by law to oversee a recount wasn’t announced until Jan. 12, a full six days after Coleman filed his election contest law suit.

If the panel isn’t in place quickly in this case, where would Dayton go to seek relief on these dismissal possibilities? Would there be enough time before the scheduled Jan. 3 swearing in?

Legal fires are burning in both camps. With the GOP’s hiring of Michael Toner — the former Federal Election Commission chairman and lawyer for Pawlenty’s presidential PAC — and Magnuson, the Emmer side has powered up, compared with Coleman’s lawyers in 2008.

Dayton has a super-charged legal team, too, led by Al Franken recount veterans Charlie Nauen and David Lillehaug. Franken’s chief trial lawyer, Seattle-based Kevin Hamilton, is expected in town later this week on another unrelated case, but he will undoubtedly consult.

“If they file an election contest, we’ll be ready to go,” said Dayton’s lead lawyer Nauen. “Just tell me what the issues are. All I’m hearing are garden-variety issues that won’t add up to 9,000 votes. Never have. Never will.”

The moment of truth looms more than a month away. That’s when the Canvassing Board will finish its work. All the legal possibilities will turn into concrete maneuvers and, outside the courtrooms, the people will get a chance to speak once more.

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.

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Comments (23)

  1. Submitted by Christa Moseng on 11/11/2010 - 09:42 am.

    I imagine any Rule 11 motion would have to be brought before the contest panel, just as a motion to dismiss or motion for summary judgment, so it wouldn’t really get you anything but sanctions. Moreover, Rule 11 requires you to give your opponent 21 days to withdraw the sanctionable filing, so it wouldn’t actually move the process forward. If anything, it would be something that could happen in parallel with the motion to dismiss, and the court would award the sanctions as a deterrent for future such conduct.

    This all boils down to the lack of any substantive legal basis for a contest, which nobody has heard or seen yet. Either the GOP is playing their cards close to their vest, or they have turned up nothing. You can guess which is more likely. As Lillehaug laid out yesterday at the U, add up all the GOP gripes they’ve named so far, and it doesn’t affect the result. Case dismissed. I agree with the comments that Magnuson isn’t going to be keen on getting nicked for sanctions in his first high profile case back in private practice.

    Besides Magnuson’s expertise as a canvassing board member, there’s another way to look at his hiring: he’s the only attorney available with his intimate knowledge of this process, and to a certain extent you just want to hire him so the other guy doesn’t. He may never sign a single filing, as Knaack said yesterday, but there is significant value in hiring him is that he can’t be hired by the other side.

  2. Submitted by Christa Moseng on 11/11/2010 - 09:43 am.

    Er, flubbed the last sentence and blundered onto the submit button before I could fix it, but you get my drift.

  3. Submitted by Georgia Holmes on 11/11/2010 - 09:48 am.

    This is all very interesting, but also quite shocking. If any of these scenarios do in fact play out, they prove in spades the GOP’s lack of respect for democracy and the voting process. There may be a legal right for whoever loses the recount (presumably Emmer) to file an election contest, but to do so based on thin or nonexistent evidence is clearly unethical. I am a little appalled at the involvement of the former chief justice in the possible scam. The rumors I have heard in legal circles are that he resigned to practice law, because he was in financial difficulty following his divorce. There is nothing wrong with that, but trading on his former position to add credibility to a frivolous challenge is pretty shameful. The sooner the Minnesota GOP wakes up and smells the coffee, the better for the them and the state.

  4. Submitted by Richard Schulze on 11/11/2010 - 10:18 am.

    Barring some major revelation of wrongdoing, turning around the numbers in favor of Emmer would be unlikely. The recount will have to show some kind of serious problems somewhere, something that would have affected the counting process across the system.

    It will be awfully hard for Team Emmer to battle against a recount that shows ‘Governor elect’ Dayton with a seven to eight thousand vote lead.

  5. Submitted by Ron Gotzman on 11/11/2010 - 10:39 am.

    If I were a member of the DFL, I would be more worried with Mark Dayton as the Governor and leader of DFL.

  6. Submitted by Ann Spencer on 11/11/2010 - 11:25 am.

    I think a strategy of prolonging the recount process to keep Pawlenty in the governor’s chair and allow an all-Republican state government to push through legislation is a very dangerous one for the GOP. I assume here, as almost everyone seems to do, that Dayton will be the ultimate victor.

    How many references did we see in the midterm elections to Congress “ramming through” the health care reform bill contrary to the will of the people? Think of the political hay that could be made of a cascade of legislation passed only because the losing side in the governor’s race prolonged the recount through frivolous litigation. A permanent aura of illegitimacy would hang over all such legislation. The Republicans, to their own surprise, were just handed control of both houses of the Minnesota legislature for the first time in decades. Do they really want to kick off their majority status by taking unfair advantage of the recount process? If they do, they might be looking at a swift return to minority status at the next election.

    The spectacle would taint Pawlenty, too, just as he is preparing a presidential run. Voters have made it clear that they don’t like political corruption or too-clever-by-half legislative shenanigans. His willing participation MIGHT make him a hero to some conservative Republicans but it would surely turn off moderate and independent voters without whom no one wins a general election. One of Pawlenty’s strengths as a candidate is his Clean Midwestern Guy image. My guess is that he does not want to be in the lose-lose position of either refusing to sign legislation passed while he’s holding over (and alienating the Republican base) or signing it (and alienating everyone else). He wants to put a period to his tenure in the Governor’s office and get on with running for President. The last thing he needs is to be caught in the middle of an ugly and divisive recount.

  7. Submitted by Tony Spadafora on 11/11/2010 - 12:00 pm.

    IP candidates Tim Penny and Peter Hutchinson, both former DFLers, helped elect Governor Pawlenty with less than 50% of the vote.

    Now it appears Tom Horner, the IP candidate and former Republican, has helped to elect Mark Dayton with less than 50% of the vote.

    Minnesota needs to seriously consider run-off elections between the two leading candidates when none of the candidates receives over 50% of the original vote.

    This would also help the lessen the “wasted vote” syndrome.

  8. Submitted by Joel Gingery on 11/11/2010 - 12:10 pm.

    If Tom Emmer wants to maintain any level of integrity as a politician, he will graciously accept the results of the recount, realizing the highly improbable likelihood of winning a legal challenge. Minnesotans were very patient during the Franken-Coleman contest because the margin of victory was so slim. The courts may decide that Emmer has grounds to challenge the recount, but the voters will regard his attempt as frivolous and shameful, making any future endeavor by him for a state elected office unlikely to succeed.

  9. Submitted by Hiram Foster on 11/11/2010 - 12:20 pm.

    There might be federal issues and remedies to consider as well.

  10. Submitted by Dennis Tester on 11/11/2010 - 12:29 pm.

    With ACORN officials pleading guilty or being convicted across the country for voter registration fraud, having one of George Soros’ “Secretary of State Project” placements doesn’t pass the smell test.

    The courts should agree.

  11. Submitted by Thomas Swift on 11/11/2010 - 12:48 pm.

    Don’t like court cases? Don’t drag mentally incapicated people to city hall and fill out their ballots in broad daylight.

    Don’t like investigations? Don’t allow college students to manage the con on campus.

    Don’t like accusations? Don’t skew the vote tally on election night under the noses of millions of Minnesotan’s.

    If the Democrat party doesn’t like the idea of protracted election proceedings, I suggest they should hire people that leave less evidence of their work laying around.

  12. Submitted by Sheila Ehrich on 11/11/2010 - 01:09 pm.

    I am not a lawyer, and I may be way out in left field and a little more willing to give Emmer a break on this whole thing than the average DFLer. And, granted, I did not SEE Emmer’s press conference the other day, but from listening to exerpts on the radio and reading about it in the papers and on MinnPost, I very much got the impression that Emmer, himself, truly wants the process to just play out.

    It appears to me that we have two different entities we’re dealing with here, Emmer and the Republican Party.

    I will also concede that Emmer may well be playing games with us and trying to maintain an even keel image and letting the GOP do his dirty work. But somehow, hiring former Supreme Court Justice Eric Magnuson, with his experience on the Canvassing Board, and appearance to be a rational thinker, led me to a thinking: Is it possible that Emmer hired Magnuson because of his experience so that when the Canvassing Board calls the election in Dayton’s favor, Emmer and Magnuson can say to the Republican PARTY, “It’s over. Dayton won fair and square, and we’re not going to drag this out. Period.”?

    I acknowledge that the rogues running the Republican Party DO want to drag this thing out for as long as they can. They aren’t thinking beyond the end of their noses. I seriously doubt that the number of Republicans who want to see their Party go down in flames over this election is truly representative of the Party.

    The more rational Republicans, and there are many, want to get through this election business and get onto legislating and the next election. They don’t want to look at more years on the sidelines just because Tony and his band of angry mischief makers want to make a political point.

    Am I really out in left field on this?

  13. Submitted by Sheila Ehrich on 11/11/2010 - 01:18 pm.

    Wish I’d read Cindy Brucato’s article before I made my comment. Some of the quotes in there from “former party leader(s)” and other anonymous sources confirm my view that not all Republicans are gung ho to see and election contest take place.

  14. Submitted by Christa Moseng on 11/11/2010 - 01:58 pm.

    I am really not sure why exactly Mr. Swift is permitted to insinuate that specific individuals are engaged in a conspiracy to commit serious crimes, even in neglect of their professional duties. Even though Swift cannot stand behind his defamatory rhetoric and name names (I assume MinnPost would not republish his allegations), such innuendo without a basis in fact has no place in a civil conversation.

    Is “dogged and borderline libelous” really a perspective that enhances the MinnPost product? Even adamantly maintained false beliefs can be presented in a constructive, and respectful way.

  15. Submitted by Richard Schulze on 11/11/2010 - 02:57 pm.

    Sorry Tom, but I find your comment a typical example of selectively using anecdotes to arrive at a conclusion that you were determined to make. Try to be more concise in your sarcasm. It doesn’t improve with greater length.

  16. Submitted by Gail O'Hare on 11/11/2010 - 04:01 pm.

    Like Gilda Radner’s Emily Litella, Mr. Swift gets his facts wrong and then blows them out of proportion. I’m waiting for his meek, “Oh, well, never mind.”

    It’s comforting to know that there will be a new sheriff in Ramsey county come January. If the Republicans deliberately prolong the process in order to engineer a Pawlenty coup, a million or so of us will converge on the Capitol to protest. Sheriff Bostrom won’t herd us into pens or arrest hundreds of us on frivolous charges. We’ll be there every day and we’ll be on the national news every night.

  17. Submitted by Thomas Swift on 11/11/2010 - 04:19 pm.

    You know, Richard, a guy gathers enough anecdotes together he’s liable to find himself with a pattern.

    One of the reasons leftists feel comfortable in proclaiming that Minnesota is free of election fraud is because no one has ever really looked for it.

    These incidents popped up to the surface without any assistance of our SOS; people might reasonably wonder what an honest investigation might turn up.

  18. Submitted by Hiram Foster on 11/11/2010 - 04:37 pm.

    “Am I really out in left field on this?”

    I don’t think you are. I have seen no evidence from anything Tom Emmer has said that indicates that he is doing anything other than pursuing his rights under, or that he is trying to game the system.

    While it is important to think about some of the nightmare scenarios Jay describes so that we can be prepared to respond to them, I think it does a disservice to Tom Emmer to assume that he would pursue them or act in any way act dishonorably.

  19. Submitted by Lora Jones on 11/11/2010 - 04:49 pm.

    Swift. You’re obviously not familiar with either election law or the role of election judges. And, as ever, haven’t even a passing acquaintance with reality or truth.

  20. Submitted by Virginia Martin on 11/11/2010 - 05:26 pm.

    swift doesn’t care about election law or the facts or constitutional issues. As R.T. Rybak said of Sutton, “he’s a bomb thrower.” Like Sutton his bombs fizzle

  21. Submitted by Bernice Vetsch on 11/11/2010 - 05:47 pm.

    Dennis T. (#10). ACORN has been cleared of any wrongdoing by a federal judge, but has been so damaged by Republican lies and innuendo that it has had to go out of business.

    So, it would seem that the Right achieved its goal of getting rid of an organization whose mission was to increase access to democracy by helping poor people and people of color register to vote AND of increasing access to home ownership for these same folks.

  22. Submitted by Richard Schulze on 11/11/2010 - 06:54 pm.

    Say Tom…

    ‘You can’t get to election fraud valley without climbing a mountain of twelve unanimous judges.’

    ht to Christopher Moseng

  23. Submitted by Beryl John-Knudson on 11/12/2010 - 09:25 am.

    The Republican, Club Control, is stomping a strange footprint indeed…trying to effect a political coup wearing hobnails while a back lot bully plays sarge with a bull horn shouting “Right, right right!”…note, no left? Get the picture?

    No, he is not The Pillsbury Dough boy in suit and tie…then again?…

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