Minnesota Lawyer
Republican gubernatorial nominee Tom Emmer appeared at a November 9 press conference to discuss the looming recount. (Staff file photo: Peter Bartz-Gallagher)
The likelihood that Tom Emmer can overcome a nearly 9,000-vote deficit in the governor’s race is exceedingly slim.
Or so says the historical record: In the last decade, there were 18 statewide recounts across the country. The average change in the vote tally was less than 300 votes – or 0.027 percent. Put another way, that’s equivalent to roughly one-thirtieth of the votes that Emmer would need to flip the election.
In just three instances has the outcome of a statewide contest been reversed following a recount. In 2004 Democrat Christine Gregoire overcame a 261-vote deficit to win the governor’s race in Washington state. Two years later Democrat Thomas Salmon flipped the outcome of the Vermont auditor’s race after initially trailing by 137 votes. And of course, in 2008 Al Franken became the 60th Democrat in the U.S. Senate after the longest, most expensive recount in the country’s history.
Legal observers from both political parties acknowledge that Democrat Mark Dayton’s 8,755-vote lead is likely insurmountable.
“That’s not only a steep hill,” said Fritz Knaak, a GOP lawyer who represented Norm Coleman in the 2008 recount. “That’s where you’re looking for footholds and ropes to help you out. It’s going to be a tough one.”
Chris Sautter, a national recount expert who played a key role on Franken’s team two years ago, uses similar terminology to describe the task facing Emmer. “It’s a very close election, but by recount standards that is a huge mountain to climb,” said Sautter, who co-authored The Recount Primer in 1994, still widely regarded as the definitive guide to overseeing contested elections. “I think the Republicans are compounding their embarrassment by pursuing a recount that has almost no chance of succeeding.”
If Emmer and the state Republican party are daunted by the numbers, they’re certainly not letting it show. Since Election Day, GOP officials have consistently offered up red-meat rhetoric about overturning Dayton’s apparent victory. Perhaps most notoriously, party chair Tony Sutton warned at a press conference that we “won’t get rolled again.”
Republicans have assembled a top-flight legal team to explore every possible means of closing the vote gap. As soon as it became clear that a recount was likely, the Emmer camp announced that Michael Toner, one of the country’s leading election law experts, would be leading their efforts. Toner is a former chairman of the Federal Election Commission and has also served as chief counsel for the Republican National Committee. He currently leads the election division at the international law firm of Bryan Cave.
“He’s an excellent lawyer and he’s a very smart guy,” acknowledged Sautter. “But he’s not a magician.”
Toner also has a local tie that’s raised eyebrows: He is legal counsel for Gov. Tim Pawlenty’s Freedom First PAC. Some Democrats fear that Republicans will draw the election contest out as long as possible in order to allow Pawlenty to remain in office as the GOP takes control of the Legislature next year. “Obviously Tim Pawlenty is taking great interest in this,” said Denise Cardinal, spokeswoman for Dayton’s recount team. “That actually concerns us because Minnesotans didn’t vote for Tim Pawlenty in this election. They voted for Mark Dayton.”
Last week Republicans announced that another legal heavyweight, former Minnesota Supreme Court chief justice Eric Magnuson, would be joining the effort. Magnuson served on the five-member State Canvassing Board that certified Franken the winner in the 2008 contest. He is a former law partner of Pawlenty, who appointed him to the state’s top court. Magnuson resigned at the end of June after two years in the post.
Other names on Emmer’s legal team are also familiar from the 2008 drama. Along with Knaak, Tony Trimble was the most high profile lawyer on Coleman’s team. The Walker-based attorney’s recount resume goes back to the tight 2000 contest between DFL incumbent David Minge and GOP challenger Mark Kenney in the 2nd Congressional District.
Matthew Haapoja is an associate at Trimble’s firm and will again be in the legal trenches. Since 1992 he’s served as general counsel for the state GOP. In 2008 he played an important but largely behind the scenes role in the recount.
Finally, Matthew Kirkpatrick, a young attorney and GOP activist, is overseeing efforts to recruit additional lawyers (preferably of the pro bono variety) for Emmer’s team. He served a similar role during the Coleman-Franken contest. “He’s made those calls,” said Knaak. “He knows what it takes.”
Most legal observers believe the GOP was outflanked strategically by Democrats in the 2008 contest. While Franken’s campaign had a squadron of national recount experts ready to descend on the Twin Cities after election day, Republicans scrambled to play defense. There are signs this time around that Emmer’s team will be the aggressors.
Last week Republicans filed lawsuits in St. Louis and Pine counties accusing local officials of stalling in responding to data practices requests. An agreement to provide the documents was subsequently hashed out with county officials, but it was a sign that GOP lawyers will be looking to create a perception of problems with the recount process.
“Partly it’s trying to cast suspicion, especially up in St. Louis County,” said David Schultz, a political science and law professor at Hamline University, of the DFL enclave that includes the city of Duluth. “It’s laying the political cover for being able to perhaps go to court.”
But no matter how fervently Emmer and the state GOP party wish to pursue every possible avenue toward flipping the election, they face another formidable obstacle: money. In 2008, Coleman and Franken raised roughly $20 million to wage their recount battle. But in that contest, a filibuster-proof majority in the U.S. Senate was on the line and the candidates were able to tap party donors from across the country.
The Emmer-Dayton contest, by contrast, has garnered little national scrutiny. Most political pundits who have weighed in regard Dayton as pretty much a lock to eventually become governor. That means that convincing GOP donors to break out their checkbooks will be a difficult task.
“Everything that I’ve read has discounted his chances of overcoming this margin,” said Sautter. “That kind of handicapping will definitely depress his chances of raising national money.”
The presence of Toner, with his national pedigree, could help. Last week he appeared at a gathering of the Elephant Club, a GOP-aligned group that requires a $1,000 annual contribution to the state party for membership. But it will be exceedingly difficult to keep the cash flowing for what increasingly looks like a futile effort to overcome Dayton’s 8,755-vote lead.
“Frankly, that was the toughest part in the Coleman race, even when you had all kinds of motivation,” said Knaak. “The good news is it’s all been done before. You can do it with a smaller staff and more volunteers, but even so, I expect fundraising to be an ongoing issue.”
