Post-2008 changes to state law probably won’t prevent ballot challenges

Following the 2008 U.S. Senate recount of nearly 3 million ballots, the state canvassing board was left with more than 6,600 challenged ballots from all corners of the state. Those ballots were selected by representatives of both former Sen. Norm Coleman and Sen. Al Franken for a host of reasons, ranging from stray marks  to any writing on the ballots that might identify the original voter.

Eventually, most of the challenges were cast aside. The campaigns agreed to withdraw more than 5,000 challenges and allow the canvassing board to begin work on the remaining ones. But even that process, and the ensuing review of the remaining challenged ballots, took time to complete.

After that experience, Minnesota lawmakers passed new legislation aimed at ensuring that future recounts would prove less unwieldy. But through the early stages of the 2010 gubernatorial recount, it appears that the  number of challenged ballots before the board could end up looking more like 2008 than lawmakers and elections officials at the center of rule and statutory changes made in the past two years might have hoped.

Already, as of Tuesday night, 740 legitimately challenged ballots (597 called out by Emmer, 143 by Dayton) were headed to the state canvassing board on Dec. 8, with more to come. And a decision last week by canvassing board members may mean that many ballots challenged on more marginal grounds will wind up in the laps of the board as well.

After the 2008 recount, the Legislature and Secretary of State Mark Ritchie had sought to avoid a repeat of the ballot-challenge deluge from 2008. State law was changed to narrow the grounds for challenging a ballot. For instance, minor markings or poorly colored-in ovals are not supposed to be grounds for a challenge under state law.

But lawyers for Emmer have argued that failing to bring all challenges – even potentially “frivolous” ones – before the board could deny their side equal protection under the law. On Thursday, the Secretary of State’s office will make a report to the canvassing board on frivolous challenges, after which the board can decide to request a copy of those ballots as well, potentially creating an even larger pool for the board to work through.

Republican Tom Emmer’s legal team has already requested a copy of the ballots for itself, and there are many times more frivolous challenges than non-frivolous ones.

The mounting challenges have become a political football for both sides in the ongoing recount. Ken Martin, who is heading DFLer Mark Dayton’s recount team, stopped short of accusing Emmer’s team of enacting delay tactics at a Capitol news conference Tuesday. But, he said, if legitimate votes are being challenged, “that’s problematic for us, it’s problematic for Minnesota and it’s problematic for the whole process.” He anticipates the Emmer camp will ask the canvassing board to review each challenge, he said, frivolous or otherwise.

Who decides what is “frivolous”?

Emmer lawyer Tony Trimble, working the recount operations at Hennepin County on Monday, said his observers were “just counting ballots,” and that there was no stalling strategy in place. “Our people are being really vigilant,” he said.

Rep. Ryan Winkler, a DFLer who worked closely on the elections issue in the Legislature, said “a significant number of challenges so far are not just frivolous but desperate.” Still, he said that the canvassing board’s approach of separating frivolous challenges while allowing the opportunity for lawyers to appeal that label later was “a good, practical approach to this.”

“It’s not going to change anything to send those to the canvassing board,” he said. “When you have no case,” he added, referring to the Republicans, “it doesn’t matter what kind of tricks you try to use.”

Even sending the marginal challenges before the board contradicts new administrative rules put in place this year to limit so-called frivolous challenges. But in its hearing before setting the recount in motion, the canvassing board considered the question of how to handle the frivolous challenges. Emmer’s chief litigator, former Supreme Court Chief Justice Eric Magnuson, made the case that local officials alone shouldn’t be able to find challenges frivolous, since that would prevent them from coming before the state canvassing board and receiving uniform review.

In last week’s hearing, Ritchie was adamant about not allowing the campaigns to game the system or delay the process with their ballot challenges. With the next governor set to take office the first week of January, Ritchie said that every 1,000 challenged ballots would take a week to review and that he didn’t want any unnecessary delays.

But ultimately the board sided with Magnuson’s argument, apparently with an eye toward staving off a post-recount legal challenge. “I don’t want you guys to come and challenge this in court,” Supreme Court Justice and canvassing board member Paul Anderson said to Magnuson. “I want to do this right.”

Rep. Mary Kiffmeyer, a former secretary of state herself, questioned the legal basis for the administrative rule on frivolous challenges, saying there could still be legal concerns over how the board handles the challenges. She said Ritchie may have overstepped his authority in setting policy and that if the canvassing board refuses to consider some frivolous challenges, it would be snubbing state law.

“The only people, in my eyes, that are entitled to look at a ballot and make a determination is the state canvassing board,” she said. Looking ahead to the 2011 legislative session, Kiffmeyer said the new Republican majority is looking at limiting administrative rules generally and ballot-challenging policy specifically.

Avoiding procedural flaws

The overarching question in post-election legal wrangling has been whether there’s a way for Emmer to overcome his nearly 9,000-vote deficit. Through the early stages of the recount, Hamline University political science professor and election law expert David Schultz said, that looks increasingly unlikely.

But another critical question, Schultz said, is whether the recount process opens the state to a subsequent legal challenge. And where questioned ballots are concerned, having officials from all 87 counties making significant decisions about what to include and what to exclude would be a legal liability. Looking to bring those decisions under one state authority, as the canvassing board is likely to do with the frivolous ballots, is a smart legal decision, Schultz added, even if takes more time to complete the process.

“It does seem to be going a little bit against the purpose of the law, but there may be good legal reason,” he said. “It makes the legal arguments more difficult.”