Elections experts say Emmer win unlikely after recount

As the vote counting nears a close in the recount in Minnesota's race for governor, several elections experts are saying they have a hard time seeing how Republican Tom Emmer will win.

With more than 84 percent of the vote recounted, the numbers show little change from Election Night results.

Democrat Mark Dayton entered the recount with a lead of nearly 8,800 votes over Republican Tom Emmer. After three days of the recount, Dayton has gained 17 votes over Election Day tallies, while Emmer has gained 14 votes.

Emmer has to find widespread problems with the elections system if he hopes to successfully contest the election in court after the recount, something three election law experts say make Emmer's path to victory is extremely difficult.

"If you surveyed the history of recounts all around the 50 states, it's extremely unlikely that you could overturn a margin of victory that's 1,000 or 2,000 votes," said Ned Foley, from the Ohio State University College of Law. "When you get up to 8,000 or 9,000 votes, that's huge odds against you."

And if the recount ends with a similar margin, Emmer is left with one option -- a legal contest in court.

Republican Party Chair Tony Sutton has suggested that may happen but hasn't provided any legal evidence to back up those claims.

View a slideshow of challenged ballots.

William Mitchell College of Law Professor Raleigh Levine said Emmer and the Republican Party would need to start building a case that shows major issues.

"From what I've seen so far, I don't think that Emmer has any basis on which to ground a successful election contest legally," he said.

Levine says Republican allegations of voting irregularities in certain precincts like illegal vouching, machine malfunctions and more ballots cast than the number of voters listed on the roster are unlikely to be enough to press any potential case.

Emmer and the Republican Party would need to show major problems that haven't surfaced to date, she said.

"In order to change a result where the vote difference is so enormous, he would really need to show systematic fraud or a mistake or another illegality and so far there's no indication of that," she said.

Levine said she expects the courts to act quickly if an election contest is filed. The Minnesota Supreme Court has more experience with election litigation after the 2008 U.S. Senate race landed in court for several months, she said.

Duke University College of Law Professor Guy Charles agrees. He said the court will be judicious in hearing any issues surrounding the gubernatorial election but said they will also keep an eye on inauguration day of Jan. 3.

"I think people want to give them the opportunity to try to raise legitimate questions but at some point in time if it's viewed that they're just throwing trial balloons in the air, they will lose credibility with the Minnesota Supreme Court," he said.

Ned Foley, with Ohio State, said a court could outright dismiss a legal challenge unless Emmer makes the case that he can make up the difference in the election.

"If the nature of the contest doesn't even claim that there are enough problems to cast in doubt a victory of 8,770 and it doesn't even attempt to show that, I would think that a court would grant that motion to dismiss very expeditiously," he said.

Foley is predicting that Emmer won't file a legal challenge because Dayton's margin of victory is too large.

Gov. Tim Pawlenty has said he will stay on as governor if the election isn't resolved by Jan. 3, when the next governor is due to be sworn in.

But he said he's not making any preparations to stay in office beyond that date.

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