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Emmer’s ‘end game’ recount strategy comes into focus as frivolous ballot challenges mount

“We have been sternly admonished not to be frivolous, and we take that seriously.”
— Tom Emmer lawyer and former Minnesota Supreme Court Justice Eric Magnuson, Nov. 23, 2010, at State Canvassing Board

“Remember, this is not a clinical process, folks. This is a political process … So, there’s going to be some of that gamesmanship around.”
— Republican Party lawyer Tony Trimble on the increased incidence of frivolous ballot challenges by Emmer in Hennepin County, today, to reporter

We have met the Tom Emmer “end game,” and it’s stuffed with frivolous ballot challenges in Hennepin County, even more than we expected.

Come Friday afternoon, we shall see what the State Canvassing Board thinks about it all.

Ever since the dust shook out on the results of Election Day and it was clear that Mark Dayton had a lead of nearly 9,000 votes over Republican Emmer, Dayton lawyers and supporters have been puzzled about where Emmer’s legal team was headed, that “end game.”

As the canvassing of the 87 counties proceeded, no major voting irregularities or fraud have been found; or, at least, none that we’ve heard of. As the recount has unfolded, just about everything has gone smoothly … except in Hennepin County, the state’s biggest, which produced about 25 percent of all of Dayton’s votes statewide.

Tony Trimble
Pool photo by Jeff Wheeler
Tony Trimble

GOP cranks up the challenges
There in the basement of the toaster they call the Hennepin County Government Center, GOP table workers, overseen by longtime party attorney Tony Trimble, have cranked up the challenges to ballots, and most of the challenges — more than 2,000 — have been deemed frivolous by Hennepin County election judges.

“Frivolous” is clearly defined in the secretary of state’s recount plan and in a rule instituted after the 2008 U.S. Senate recount. “Challenges may not be automatic or frivolous,” reads the recount guide. “A challenge is frivolous if it is 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.”

But Emmer challenges have included objections to a dot in another oval besides Dayton’s or, frankly, to something like the oval for Dayton being filled in, but only 99 percent so, not 100 percent. The voter’s intent is clear. As an example, here’s a link to 84 ballots from one Minneapolis precinct.

The pace has picked up over the past two days, and this afternoon, Trimble, more or less vowed to increase the challenges until they reach the level of Dayton’s lead, which is now, it seems, more than 9,000 votes.

What’s so odd is that this Emmer frivolous challenge frenzy has occurred as Hennepin remains one of the few counties still recounting. In others that have completed their recounts, the numbers of frivolous challenges by Emmer table officials have been minuscule. More than 80 percent of the frivolous challenges statewide have come in Hennepin County.

Ramsey County, 6. St. Louis County, 13. Olmsted County, 13. Stearns County, 5.

As for Dayton, his side produced 42 frivolous challenges, but late today, Dayton lawyer Marc Elias sent a letter to the Canvassing Board withdrawing all of Dayton’s challenges.
Elias told the board: “The Emmer campaign has embarked on a disruptive campaign of frivolous ballot challenges.”

At noon today, at an ad hoc briefing, reporters gathered around Trimble, who also was one of Sen. Norm Coleman’s lawyers in 2008, and asked him questions.

Trimble explains strategy
Reporter: “Tony, if you guys don’t have 8,770 challenges, should the Canvassing Board look at a smaller number even if it wouldn’t be enough to turn around the results?”

Trimble: “The Canvassing Board would obviously perform its role … There will be a large number of ballots. It’s too early to predict how many there will be, but I’m quite confident we’ll have a significant number of ballots, more than will be required to make this a substantive review by the Canvassing Board.”

Reporter: “Did you just predict that the Canvassing Board would get more than 8,770 challenges?”

Trimble: “That would be my prediction, of course. That’s why we’re here.”

Reporter: “That means the pace of challenges is going to have pick up significantly”

Trimble: “That could happen.”

Reporter: “With all due respect, Mr. Trimble, what you just said, though, sounds like you’re going to challenge to get the number no matter whether they’re real challenges or not .”

Trimble: “No, I didn’t say that. I said I think, I predict, that we’ll have significant number of ballots for the Canvassing Board to review.”

After another question, Trimble told the journalists: “Remember, this is not a clinical process, folks. This is a political process. There’s obviously partisanship involved on both sides. Let’s be frank. This is also a political process. So, there’s going to be some of that gamesmanship around. Just like a campaign is a political process. This is an extension of that. It’s for the seating of a governor. So there will be huge emotions, huge efforts expended on each side. Let’s let it play out fairly, cleanly, above board and then we can make decisions.”

Later, a reporter asked: “What’s the point? What’s the point of doing what you’re doing? Why are you doing it this way?”

Trimble: “I don’t understand your question.”
Reporter: “The question is: Mark Dayton is ahead by 9,000 and you’re challenging ballots just to challenge ballots. You said that.”

Trimble: “No, we’re not. I didn’t say that, and I think you’re putting words in my mouth. We are allowing our challengers to challenge ballots that they have a question about.”

Reporter: “But you must be instructing them to challenge them?’

Trimble: “No, I am instructing them to challenge ballots if they have a significant doubt as to the intent of the markings on that ballot.”

Reporter: “But you train them on what to look for, yes?

Trimble: “We train them to look for anything that might lead to doubt as to the intent of the voter with respect to that ballot. If they have any doubt, then they challenge.”

Which takes us to Friday’s 2 p.m. Canvassing Board meeting, called specifically to address the matter of frivolous ballot challenges, when we will learn if the board will review any of them. The board will meet in the same room it did on Nov. 23, when Supreme Court Justice Paul Anderson admonished his former colleague, Eric Magnuson, who is now Emmer’s other lawyer.

Anderson pointed to Magnuson that day and reminded him of his oath as a lawyer, and he implored Magnuson to advise Emmer recount workers. “I sure hope you’re not going to let them make a frivolous challenge, just to do it,” Anderson said.

Later, Anderson added: “I would trust that as you go forward and you have challengers and you would give them proper instructions. We said that frivolous challenges are not welcome. And I would hope that you would not come here and I’d have a stack of ballots that are per se frivolous and you would justify that … Can I get that assurance from you?”

Magnuson said he would follow the letter and spirit of the recount law and rules, adding, “We will abide by the rules and the regulations as long as we have a chance to present our case, if we have a case.”

And that’s what we will learn more about on Friday, when Anderson takes his place behind the board table and Magnuson sits 10 yards away with Trimble, no doubt, at his side.

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 (20)

  1. Submitted by Hiram Foster on 12/02/2010 - 05:21 pm.

    “A challenge is frivolous if it is 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.”

    So are identifying mark challenges the only challenges that can be frivolous? Is the definition above exclusive? Or can other, non-identifying mark challenges be frivolous such as to a ballot where the oval is almost but not entirely filled in?

  2. Submitted by Matt Pettis on 12/02/2010 - 06:19 pm.

    So there’s a rumor floating around that the Emmer campaign is asking volunteers to get a quota of challenges per precinct.

    I don’t buy it, and here’s why.

    When asked about the quota, Tony Trible said that that was incorrect, and there were precincts where there were no challenges, which is correct. I think it would be political suicide to ask your volunteers to do a quota. If Trible said this, and he and a volunteer were deposed in court, and the volunteer said that they were asked for a quota, I think that that would raise holy hell, within the legal proceedings and politically outside the courtroom.

    What I think would be more likely would be to take your volunteers, see which ones naturally have a high challenge rate, and make sure that they keep returning to the floor, while the low-vote challengers are not asked to return. I’d like to see the rate of returns to the counting tables of high challengers vs. low ones for the Emmer campaign. That way, you don’t ask volunteers to do anything shady, and you can’t get caught in an uncomfortable fact coming back to bite you in legal proceedings.

    Do I think this is the case? I don’t know; I’d have to see the data I just spoke about. But what I’m saying is that the “quota” theory is not that realistic. If I end up wrong on this, I’ll be happy to find out that I actually underestimated the stupidity of the Emmer recount team.

  3. Submitted by Greg Kapphahn on 12/02/2010 - 06:25 pm.

    Yup. You just knew they had to come up with some totally bogus B.S. with which they would then try to stink up the Minnesota court system (being completely immune to the small of B.S. themselves since they seem to bathe in it daily).

    Decades from now the term “red herring” will become just a distant memory for the elderly, having been replaced by the term “Republican election challenge.” (unless of course that term has been beaten out by “voter fraud”).

  4. Submitted by Paul Udstrand on 12/02/2010 - 07:23 pm.

    Wow. No one saw this coming.

  5. Submitted by Paul Brandon on 12/02/2010 - 07:58 pm.

    Stands to reason (pardon the term) that the GOP is concentrating on Hennepin County. That’s one of the few places where they could even hope to pick up 10,000 votes.

  6. Submitted by Ray Lewis on 12/02/2010 - 07:59 pm.

    I’m not sure how “vouching for people you don’t know” fits into the end game. However, the lack of individual ballot challenges for Ward 3, Precinct 1 in Minneapolis where there is an ongoing investigation of registration fraud might raise questions about challenging all 500 or so same day registrations of the 700 or so people who voted there.

    It might be a long court case to have all the University students testify under oath about who they vouched for, or whoever vouched for them, and how they met the standard for personal knowledge of identification and residency within the precinct.

  7. Submitted by Don Medal on 12/03/2010 - 06:38 am.

    Whether the observers were instructed to challenge frequently or just supported in doing so they were under the constant control of a site manager and lawyers present. They should have been trained using something like Magnuson’s own training materials. I was an observer in a northern county and saw and served in the process. If my site supervisor or the attending lawyer thought I wasn’t following the rules, I’d have been pulled, I’m very sure. So that makes Magnusson directly responsible for the actions of the observers for Emmer. It is bogus to claim the observers are somehow independant from the campaign. And this, unfortunately, makes Magnuson a liar for agreeing to keep frivolous challenges out and then encouraging them (perhaps only by assigning only those who challenged a lot). You can now see over 80 frivolous ballots, the rest are likely to be the same – unsupportable by sane people. This makes at least three people of power stained and stinky: Emmer, Sutton, and Magnuson. Why Magnuson would get dirty in this I don’t understand. He makes some money now but is left with a reputation as a weasel. All three are going to be fodder for attack ads on GOP candidates. Why do this to your party, I ask of rank and file Republicans?

  8. Submitted by James Riemermann on 12/03/2010 - 07:09 am.

    The ballots linked to in this article surely are frivolous challenges. My own was no better than most of them–I am not flawless in my filling in of the oval.

    I wonder what this new rule disallowing frivolous challenges really means–are the officials who receive the challenges still required to examine each and every one? If so, that gives a lot of power to the challengers to gum things up.

  9. Submitted by Neal Rovick on 12/03/2010 - 08:11 am.

    The local officials can rule challenges “frivolous”, meaning “without merit”, but if the challenger persists in the challenge, the questioned ballots are forwarded to the Canvassing Board for final determination. The Canvassing Board was pretty clear that they didn’t want to have to wade through a swamp of “frivolous” challenges on ballots that do have clear “voter intent”.

    But desperation requires slicing the bologna pretty thin. By the way, 103 ballots were challenged in the precinct mentioned in Comment #6–not 500. Is there really any other issue than that there? It’s a precinct with a large student population by the UofMn. I guess the GOP is not all that confident in the organizing ability of the Young Republicans.

  10. Submitted by Paul Udstrand on 12/03/2010 - 08:23 am.

    Actually the challenges themselves cannot be the “endgame” since the vast majority of them are frivolous and will be tossed as such. I think the end game must be to challenge the tossing of frivolous ballots in court and seek some kind of trial. They must thinking they can force the supremes to reexamine challenges.

  11. Submitted by Bill Schletzer on 12/03/2010 - 09:19 am.

    I looked at many of these ballots at the state web site and intent is obvious in most of them. It is also obvious to me that ultimately they will be thrown out, Dayton will become governor and the Republicans will forever after complain that another election was “stolen” from them. The whole point is to delay and frustrate the opposition at the expense of the electoral process and to have a bogus talking point for the future.

  12. Submitted by Jon Kingstad on 12/03/2010 - 10:10 am.

    The definition of “frivolous” is at Minn. Rule 8235.0800, subpart 2.

    It’s becoming clear that the “end game” is to delay the seating of Mark Dayton as Governor to allow Pawlenty and the new Republican Legislature. No doubt the endgame is to engage in some shenanigans like passing a redistricting plan that gerrymanders the state into even worse districts than presently exist.

  13. Submitted by Alan Williamson on 12/03/2010 - 11:14 am.

    I think many people in Hennepin County don’t forget that Emmer said that waiters make $100,000 a year in tips. For myself, I vote for a person that is smarter than me.

    In 2012, China’s new President will be a Chemical Engineer. The Premier will be a PhD in Economics. The USA will have Sarah Palin.

  14. Submitted by Tony Spadafora on 12/03/2010 - 11:16 am.

    Did Trimble use his Judy Tenuta voice when he said: “That could happen.”

  15. Submitted by Hénock Gugsa on 12/03/2010 - 12:17 pm.

    @# 14 – Spot on, Alan.

    And if I may add, that not only has our pool of national political leadership talent been continually going dismal and stale, but there is also no sign of abatement. Locally here in Minnesota, however, I think we are doing just fine although now and then we run into some dunderheads here and there.

  16. Submitted by Virginia Martin on 12/03/2010 - 01:17 pm.

    “Contemptuous of the voters of Minnesota” pretty much says it all.
    Where are our Elmer Andersons and our Luther Youngdahls and our Freemans and our Stassens and our Wendy Andersons (notice that all but Wendy and Freeman are Republicans, who would not get nominated much less elected today). These are and were men of stature, and they were part of a big pool of intelligent, experienced, educated people of integrity who did have Minnesota voters and values at the center of their work.
    I doubt that I will ever see the likes of them again. People like Emmer and Sutton and apparently even Magnuson are greedy, me-first lilliputians compared to any of these men.

  17. Submitted by Jim Roth on 12/03/2010 - 04:51 pm.

    It’s pretty obvious but disgusting that retired Minnesota Chief Justice Magnuson is just providing political cover (or a thin veneer of respectability) to unjustified and irresponsible political gamesmanship by Emmer and his cronies.

  18. Submitted by Clayton Haapala on 12/03/2010 - 05:03 pm.

    I followed the link and viewed some of those questioned ballots.

    Obviously, the counter-suit to any Emmer litigation would be for equal protection for those with problems with small motor skills. I mean, Sheesh! Pretty obvious voter intent.

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