Minnesota Lawyer
Republican Tom Emmer conceded the 2010 governor's race outside his Delano home on Wednesday morning. (Staff photo: Jake Grovum)
Left without any apparent legal options by the Minnesota Supreme Court, GOP nominee bows to the inevitable
With his legal options in the gubernatorial election recount at a dead end, Republican Tom Emmer conceded the race to DFLer Mark Dayton on Wednesday morning.
“Minnesotans have made their choice, by however thin a margin, and we respect that choice,” Emmer said outside his Delano home Wednesday morning. “Today is about closure. I’m honored to have been part of the process.”
For all practical purposes, the election was settled on Tuesday, when the Minnesota Supreme Court released its opinion explaining the court’s earlier denial of a petition by the Emmer/GOP legal team to re-do the state’s ballot reconciliation process. The 18-page ruling effectively dashed Emmer’s last remaining hope of mounting a legal contest that might derail, or forestall, the inauguration of Mark Dayton on January 3.
Less than two hours after Emmer’s announcement, the state canvassing board certified Dayton the winner. The board, in the end, did not examine the 181 contested ballots in the race; Emmer waived any further recount proceedings, as he had the right to do under Minnesota law. Thus, the results certified on Wednesday reflected pre-recount vote totals.
Up until Tuesday, Emmer and the Republicans were by all accounts positioning themselves for a legal contest over alleged discrepancies between ballot totals and election register signatures in precincts around the state. Emmer hammered on the theme last Friday at a press conference called ostensibly to announce that his legal team was abandoning its so-called “frivolous” challenges to thousands of ballots during the hand recount.
That same day, the canvassing board had admonished two top Emmer attorneys – former Supreme Court Justice Eric Magnuson and attorney Tony Trimble – for even attempting challenges that, at times, “bordered on the ludicrous,” in the words of Judge Gregg Johnson, a canvassing board member.
By Tuesday, the Secretary of State’s office announced that only 181 challenges remained — 90 from Emmer, 91 from Dayton. The puny numbers only underscored the legal reality of the matter: A court challenge over the issue of reconciliation was all Emmer’s attorneys had left to try to dislodge the nearly 9,000-vote Dayton lead.
Emmer, his lawyers and Minnesota GOP officials had repeatedly sought to cast doubt on the outcome by invoking the reconciliation issue, claiming there could be tens of thousands of votes at stake in the entire state. But that argument was nullified by the court’s unanimous 5-0 decision (the other two justices were serving on the state canvassing board) rejecting the legal arguments behind the Republicans’ case.
At the heart of the reconciliation issue is how local officials measured the total number of ballots cast against the number of recorded voters. The letter of state law calls for voter certificates, which are no longer used, or for signatures on the election register to be used to determine how many people legally cast ballots at each precinct. If there are more votes than voters in a given precinct, the prescribed remedy is to randomly remove enough ballots to make the totals match.
But a state administrative rule permits the use of either voter receipts or the election register to do reconciliation. Emmer’s attorneys had petitioned the court to stipulate that only the election register could be used. They were rebuffed on that score: The Supreme Court’s decision sided with the administrative rule, calling both standards acceptable.
Speaking on Tuesday afternoon, before Emmer’s concession, election law expert Edward Foley, an Ohio State professor, said it was hard to imagine how the opinion left any room for a legal challenge on Emmer’s behalf.
“I haven’t seen anything that has suggested we’re not at the end of the road,” he said after reviewing the opinion. “Every election has a losing candidate. Someone has to lose. At some point it’s over when it’s over; you can’t simply say ‘I wanted to win’ and go to court.”
Even before the ruling, a legal contest based on reconciliation looked difficult. Many observers saw the quick and unexplained Supreme Court decision in November – which refused to force local officials to reconcile votes as the Republicans wanted before the recount — as a signal that the court was loath to intervene in the recount process. The prospects for getting a court to order another round of vote reconciliation after the fact appeared very remote, according to elections experts.
Foley pointed out that even if Republicans were to move forward with a legal challenge, and a court agreed that their claim had potential legal merit, the complaint would probably still be dismissed due to the extreme unlikelihood that it would have any impact on the outcome. “It’s standard operating procedure in an election contest to say, ‘If the allegations don’t amount to enough to change the result, you can’t go forward,’” he noted. That principle of case law is ultimately what appears to have doomed Emmer’s chances of pushing forward: There was no path to victory in any of his arguments.
“The court kicked out whatever little leg he’s had left,” said David Schultz, a Hamline University political science and law professor.
In theory, Emmer still had one front of attack. Through the course of the recount, he and his attorneys made repeated reference to Minnesota’s Statewide Voter Registration System as a potential means of addressing the reconciliation question. State law says that database is to be updated by December 15. But local officials often take longer to enter data, and there are exemptions – over personal safety concerns, for example – that would keep some voters off the list anyway.
The database also “changes every day,” said Beth Fraser, director of governmental affairs for the Minnesota Secretary of State, meaning it would be of little help in determining how many votes were legally cast. “It has nothing to do with ballot reconciliation,” she said.
Still, Emmer brought up not only the voter registration system, but the integrity of Minnesota’s elections as a whole in his Wednesday concession, saying he still believes there are issues to be worked out with the state’s election administration, including the reconciliation process. He said he plans to devote his energy to fixing some of those problems, specifically citing photo ID legislation as something he’d like to see pursued. But as far as the governor’s race was concerned, he added, it was time to allow the Legislature and Dayton to get to work. He pronounced himself satisfied that the process had been followed through completely.
If the legal prognosis for Emmer was bleak before Wednesday’s announcement, so were the political and financial prospects of carrying an election fight forward.
Any delay in the Dayton inauguration would have left Republicans holding both the Legislature and the governor’s office for a time, but the potential political liability was huge. According to a Public Policy Polling survey released Tuesday, two-thirds of Minnesotans already thought Dayton won in November and that Emmer should concede.
The fundraising picture was similarly fraught. Speaking prior to the news of Emmer’s concession, Charlie Weaver, the executive director of the Republican-aligned Minnesota Business Partnership, said that absent any evidence of electoral misconduct, many GOP donors wouldn’t be interested in “funding a fishing expedition.”
