ST. PAUL, Minn. (AP) — Republican Tom Emmer failed Monday to convince Minnesota's highest court that signed polling place rosters must be matched with the number of votes tallied in the state's undecided race for governor.
In a rapid ruling issued within two hours of a court hearing, justices declined Emmer's request to order the comparison prior to an automatic recount in the race, which could have led to some ballots being randomly disqualified. Emmer trails Democrat Mark Dayton by 8,770 votes.
The court's order came with little explanation. Justices said they wanted to get it out quickly "so as not to impede the orderly election process" and would follow up with a detailed opinion later.
Republican Party chairman Tony Sutton, speaking on behalf of Emmer, expressed his disappointment. Sutton said the Emmer camp is turning its attention to the recount, which is due to start Monday.
"We will continue to work to ensure that Minnesota election law is followed, that the most basic right of our election system of one person, one vote is upheld," Sutton said.
Dayton attorney Marc Elias told reporters before the court acted that his client's lead was "insurmountable absent some kind of evidence that something went very wrong, and we have seen nothing to suggest that."
Last week, Emmer filed the lawsuit that prompted the fast–track hearing. He asked the court to order local election administrators to count up voters who signed polling place rosters and line their results up with final precinct tallies. The process known as reconciliation could have led to ballots being randomly set aside.
Election administrators argued that they were acting within state rules in balancing their vote tallies using generic but numbered receipts issued to voters and said there were few cases where there was a mismatch at night's end. Dayton's lawyers contended the remedy — a random pull of ballots — would punish voters who properly cast them.
At one point in the hearing, Justice G. Barry Anderson suggested that the signed rosters are the "gold standard" for determining how many people actually voted, but he also questioned whether using one over the other would make a difference.
"Aren't we really arguing about form over substance here? At the end of the day, isn't the voters receipt simply proof of the underlying signature?" Anderson asked Emmer attorney Diane Bratvold.
She stood her ground. "We are in fact arguing over how the correct number of lawfully cast ballots will be determined. There could be something of no greater significance than that single question, particularly here where we are going to enter an automatic recount," Bratvold said.
Without offering concrete evidence, Emmer's attorneys guessed there were be thousands of excess votes in the current tally. But Hennepin County and Ramsey County, Minnesota's two largest, say they found a combined 27 extra votes across hundreds of their precincts, according to court papers they filed.
State law provides for the random subtraction of votes.
"It seems very clear that was not followed here," said Justice Christopher Dietzen. "It seems difficult that we as a court should turn a blind eye to that."
Defending the way things were done, Minnesota Solicitor General Alan Gilbert told the court that officials used proper discretion and the number of extra ballots "really doesn't affect in the grand scheme of things the outcome of the election."
Elias cautioned the court about altering second–guessing the rules officials relied on.
"Once the ballots are opened and once you know the vote total the court should be skeptical about procedural challenges that could have been brought earlier," Elias said.
The issue could resurface. A brief his legal team filed Monday hinted that it could become part of a post–recount election contest, in which the entire election is put on trial.
In the brief, Emmer insisted the polling book and vote tally matches be done before the recount. Without it, Emmer's lawyers wrote that they "may be forced" to raise the issue in a contest, "which may well drag this election into the beginning of 2011."
The next governor is supposed to take office on Jan. 3, but an election lawsuit would delay the vital election certificate he needs. Under the constitution, current GOP Gov. Tim Pawlenty may be left in office until the case is resolved.
As the court held its hearing, Dayton and running mate Yvonne Prettner Solon met with leaders of the Legislature's Democratic minorities. Afterward, he said he doubts there will be much change in the numbers as the recount moves forward, noting that he picked up 15 votes after mandatory local postelection reviews of random precincts.
"I don't see anything thus far that's been raised that would cause anyone to doubt the fundamental integrity of the election at this point that has Yvonne and myself ahead by 8,770 votes. So, let the process continue but let it continue in a timely basis," he said.