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Court, polls, challenges: Emmer takes multiple hits in recount battle

It was not a good day for Rep. Tom Emmer. Actually, it was a rotten day.

It was not a good day for Rep. Tom Emmer. Actually, it was a rotten day.

From every direction — the Minnesota Supreme Court, a political poll and the increasingly dire numerical reality — the Republican candidate for governor got slapped.

Now, it seems, it is just a matter of time before Emmer, who is trailing by more than 9,000 votes with the State Canvassing Board set to meet again Wednesday morning, has to gracefully concede to Mark Dayton.

All we heard from the Emmer side late today was a somewhat subdued statement from the normally outspoken Republican chairman, Tony Sutton: “While we are disappointed in today’s decision from the Minnesota Supreme Court, we will continue to take this process one day at a time. As the next step in this legally mandated recount, we look forward to tomorrow’s State Canvassing Board meeting.”

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Emmer’s options rapidly fading
But Tuesday’s swirl of events conspired to shut down any rational path Emmer has to halting Dayton’s inexorable elevation to the governor’s office.

Emmer’s most crushing defeat came at the hands of the state’s most powerful court. 

On his most enthusiastically asserted legal issue — which really wasn’t that substantial to begin with — Emmer claimed that election officials around the state didn’t properly count the number of people who voted. Citing an old law that hadn’t kept up with new voting procedures, Emmer’s legal team claimed that the only way to count voters who voted was by tallying signatures on the voter rosters.

But most counties statewide count voters with “receipts,” those little slips of paper you get when you sign in and then quickly hand over to another poll worker who then hands you your ballot. Election managers say counting the receipts at the end of a hectic Election Day is far more accurate than tallying up signatures.

Two weeks ago, the Supreme Court heard Emmer’s lawyers on the issue and took all of 90 minutes to deny (PDF) Emmer’s petition to delay the recount while the voters’ signatures were tallied statewide.

Holding out hope, Emmer and his lawyers said they were awaiting the Court’s full opinion, because, perhaps, it would give the candidate some wiggle room towards filing an election contest lawsuit after the recount.

Tom Emmer
MinnPost/Terry Gydesen
Tom Emmer

But there was nary a whiff of hope for Emmer in the court’s 18-page opinion (PDF) which states unequivocally, “[I]t is clear that the Legislature intended to permit reliance on either signatures on polling place rosters or voter’s receipts to determine the number of ballots to be counted … Because we conclude that the practice petitioner claims is in error, that is, determining the number of ballots to be counted on election night by counting the number of voter’s receipts, is permissible  … we hold that petitioner has not demonstrated any ‘wrongful act, omission, or error’ that provides a basis for relief. The petition must therefore be denied.”

Goodbye, wiggle room.

Could Emmer prevail? Prof says, ‘No’
Given the Supremes’ ruling today, does Emmer have a chance to prevail in a contest? William Mitchell College of Law professor Raleigh Levine, an elections law expert, pondered that question for about two seconds, and replied simply, “No.”

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Added Ken Martin, Dayton’s recount director, the court’s opinion “makes it clear that any effort to file a legal contest on this matter would lose in court.”

No one should be surprised by the court’s opinion, Levine said.

“The opinion justifies the ruling that the court made on the day of the hearing,” Levine said. “To the extent that the death knell was sounded [for Emmer] it was sounded back then. This today was just an explanation of why it was sounded then.”

More importantly, Levine noted, the opinion was issued “per curiam,” or from the entire court. Only five justices were part of the panel because the other two justices —Paul Anderson and David Stras — are on the canvassing board and recused themselves from the case. Just like the strong and final Supreme Court ruling in the Al Franken-Norm Coleman recount in 2008-09,  per curiam means, said Levine, “We’re all behind this. In many ways, it’s a stronger statement than just a unanimous opinion.”

Speaking of opinions, Emmer’s day began with a reliable pollster revealing that 68 percent of Minnesotans surveyed think he should concede, and that was before the high court’s decision. Forty percent of Republicans said he should stand down.

That seemed to echo some comments made by prominent Republicans over the weekend.

And the drumbeat to let Dayton begin the transition came from DFL circles, too, such as Rep. Ryan Winkler of Golden Valley, who said in a statement, quite colorfully: “It’s time to read the tea leaves: the party’s over. Now is the time for Tom Emmer and Tony Sutton to do all Minnesotans a favor, and concede … Even if Tony Sutton and Tom Emmer can’t read the writing on the wall, their lawyers know that further legal obstruction will likely result in ethics sanctions.”

By noon, Emmer’s lawyers had withdrawn almost all of the challenges they made during the recount to Dayton-leaning ballots, including almost all of their frivolous challenges.

According to a statement from Secretary of State Mark Ritchie’s office, only 181 challenges of any ballots now exist, 91 by Dayton and 90 by Emmer. (Dayton’s side said tonight their challenges are down to 86.) That’s a far cry from the 9,000 votes that Emmer needs to catch Dayton.

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With those few number of ballots in play, it’s likely the State Canvassing Board can complete its work Wednesday. Ritchie had set aside three days for examination of challenged ballots.

Only one other issue currently in play
The only other legal issue Emmer, Sutton and lawyer Eric Magnuson have mentioned involves the status of the State Voter Registration System. But whatever qualms the Emmer side has with the SVRS, exactly what its relevance is to the outcome of this gubernatorial election is unclear.

As William Mitchell’s Levine said, “In terms of an election contest, there has to be something that justifies flipping the result or invalidating the election. There still has to be some indication of fraud or a mistake or illegality. We haven’t seen that.”

Said Dayton’s recount director Martin: “We look forward to the rapid conclusion of the Canvassing Board process and prompt certification of the results of the 2010 gubernatorial election.”

After that, Rep. Emmer, painful as it will be, will have to throw in the towel. The recount will have ended. The court will have spoken, and the public will be ready to move on.

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.