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.”
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.
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?
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.