Board orders recount, chills further legal action
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The State Canvassing Board officially ordered a statewide hand recount on Tuesday of the 2.1 million ballots cast in Minnesota's race for governor.
The five-member panel met to order the recount and set the rules for how it will be handled, and said they were working to prevent the loser of the recount from taking the matter to court.
The State Canvassing Board formally received the results of the governor's race from county elections managers -- they show Democrat Mark Dayton with a 8,770 vote lead over Republican Tom Emmer, a margin of 0.42 percent. That's small enough to trigger an automatic statewide recount which means Emmer and Dayton are essentially tied at zero as elections officials gear up to start counting the more than two million votes cast on Election Day.
But the canvassing board's work didn't stop there. The five members spent hours reviewing and reworking the rules for the recount.
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"All I want is to get this thing resolved so the people of Minnesota get the governor that they've elected," said Minnesota Supreme Court Justice Paul Anderson, who sits on the State Canvassing Board with fellow Supreme Court Justice David Stras, Hennepin County Judge Denise Reilly, Ramsey County Judge Gregg Johnson and Secretary of State Mark Ritchie.
The five have the task of setting the parameters of the recount and then handling any ballots that are challenged by the Dayton and Emmer campaigns. Anderson, and the others, say they want to ensure that the recount is fair but also have a clear eye on preventing any legal challenges once their work is finished in mid-December.
"I don't want you guys coming and challenging this in court. I want to do it right," Anderson said.
The board discussed terms that became standard phrases during the 2008 Senate recount. Terms like "the fifth pile," "frivolous challenges" and "calls at the table." Since then, Ritchie worked to streamline rules to improve the system and make the recount go faster.
One way to do that was to reduce the number of frivolous challenges to ballots that the campaigns may make during the recount. A new rule would have given the local election official the authority to declare a ballot challenge "frivolous" instead of forcing the State Canvassing Board to make the call.
Attorneys for Emmer object to that ruling. Eric Magnuson, who sat on the State Canvassing Board in 2008 when he was Chief Justice of the Minnesota Supreme Court, said allowing a local election official to make the call takes away the authority of the board.
"This procedure that you're proposing will simply remove from the canvassing board's view, any number of challenges because some local official deemed it frivolous," Magnuson said. "With all due respect, I think that that deprives this board of the opportunity to exercise its authority."
After several members of the board expressed concern that they were giving up part of their authority, the board ordered recount officials to collect all challenged ballots that local elections officials deem frivolous.
That now means elections officials are responsible for keeping six piles during the recount: votes for Emmer, votes for Dayton, votes for other, a challenged Dayton ballot, a challenged Emmer ballot and the frivolous pile. Several board members then warned the campaigns to be respectful when it comes to challenging ballots.
The attorney for Dayton's campaign suggested the secretary of state's office could reduce the number of challenged ballots by counting ballots even if they've been challenged. Marc Elias, who worked for Democrat Al Franken during the 2008 recount, said failing to provide all of the results prompts campaign officials to challenge ballots in an attempt to make the vote margin appear close in the media.
"The way in which the reporting was done created an incentive in the media, or created a reality in the media, that challenges frivolous, non-frivolous, meritorious of any nature would make candidates look like they weren't actually gaining votes," Ritchie said.
Ritchie said his office will release vote totals each night. The results will include votes for Emmer, votes for Dayton, votes for other, ballots challenged by Emmer and ballots challenged by Dayton. Ritchie said ballots that local officials deem frivolously challenged will be included in the vote totals for the candidates.
He said after the fourth day of the recount his office will release the total number of frivolous challenges, so the public will know which side is challenging more ballots without proper reason.
