After a petition last Wednesday from trailing candidate Tom Emmer (R) to the MN Supreme Court, that court asked "interested parties" for legal briefs in reply by last Friday.
VERY interested party Mark Dayton (D) who happens to LEAD in the governor's race by +8755 filed a brief...as did interested Secretary of State Mark Ritchie (accused (again!) of botching an election)...as did interested county attorneys for Hennepin, Ramsey, Anoka and Dakota counties (accused of cutting corners in counting ballots after the polls closed.)
Yesterday the Court said they would "inform interested parties" if there would be Oral Arguments. Word broke yesterday mid-morning there WOULD BE: 2:30pm.
And then MORE stuff happened, below the fold.....
CROSS POSTED AT Minnesota Progressive Project
WARMING UP FROM 2008
Things in the Governor's Recount were a little slow yesterday morning, matching the commuting speeds on Twin Cities roads. (Freezing rain and crud snow on top; just snow, already! At least we can plow and shovel that.)
Oh sure there was an EXCELLENT diary ("he said modestly") that rounded up all the news over the weekend:
http://www.dailykos.com/...
but still and all it was fairly tame.
Then around 10am came a flashback bit of news. A group called Citizens for Election Integrity held a press conference which the Uptake covered here:
http://theuptake.org/...
(N.B. CEI is an honest, upfront, good government group looking to protect and improve elections. Definitely NOT to be confused with some of these "Election Watch" and "Election Integrity" groups that have names that sound a LOT like honest groups.
THOSE groups are from the Reichving engaging in voter intimidation and voter suppression in "troubled precincts" (which are ALWAYS poor, ethnic, full of people of color, heavy Democratic voting majorities.)
Just ONCE I'd like to see a group of "Voting Integrity" types composed of former defensive linemen from Grambling, showing up in, say, Orono, MN precinct A-1 ("Pretentious Acres"). They could come off like "the brothers" from Lambda Lambda Lambda showing up in the nick of time with U.N. Jefferson.
Then they could very obviously start taking down license plate numbers on the Lexi. (1 Lexus, 2 Lexi) They could VERY politely hold open car passenger doors in front of the voting place to help out elderly voters and sweetly as someone 6'6", 315 can, ask both the oldster and the driver, "You don't have any outstanding parking tickets or suspicious tax deductions that would interfere with your right to legally vote today, do you?" Just once...to see that on video.)
CEI, with an assist from the Unitarian Universalists, looked into all those Republican rantings from the 2008 Senate race and recount and found.....like nothing! (Try to act surprised.)
Read about their work here:
http://www.minnpost.com/...
They were backed up by the Minnesota County Attorney's Association. The MCAA were the county prosecutors that had to investigate all these imaginings and they think it was a complete waste of time and of money they don't have to spare. So wrote the AP here:
http://www.twincities.com/...
THE MORNING BREAK(ING NEWS)
Around 9:30am came word from Mike McIntee at the Uptake that there WOULD BE oral arguments and they would happen ON MONDAY, at 2:30 to be precise.
They didn't call on everyone to come with oral argument but they DID ask it of three parties:
- the GOP and Emmer (who filed the petition in the first place, so of course),
- the Secretary of State's office (who was in charge of the whole election, which the petition impugned...imPUGNED I say (weird looking word; something odd in the etymology of that term.) and
- Mark Dayton (who, next to Tom Emmer, is THE MOST interested party in the entire state.)
THE AFTERNOON SHOW
Round 1) And so it came to pass. We all tuned in to the Uptake (with pool camera work from Channel 11, NBC local). As plaintiff the GOP/Emmer side opened and closed, with attorney Diane Bratvold arguing her side. Mostly she was trying to draw a sharp distinction between an election statute that requires number of ballots match the number of voter signatures in the election book, and an administrative rule built on that statute that matches the number of ballots to the number of voter receipts.
(You go to your precinct to vote, sign the election book. The poll worker gives you a voter receipt. You walk to the next table, hand over your voter receipt and the election judge gives you a blank ballot. You vote, slide ballot into optical scanner.)
"It strikes me that the practical effect is you end up with the same number either way," said Justice Alan Page.
Justice G. Barry Anderson added: "At the end of the day, isn't that voter's receipt simply proof of the underlying signature?"
---snipped from the Star Tribune
Bratvold argued at length and vigorously that the letter of the law by statute (signatures) should be followed (which is a lot slower for counting purposes.) Maybe a little too vigorously; as her time ran out Justice Helen Meyer said she thought it was overstating the situation to say that county election officials who used the receipts were "not following the law." (Bratvold came pretty close to accusing them of violating the statute.)
Round 2) Solicitor General Alan Gilbert defended Secretary of State Mark Ritchie for 10 minutes. (Since Ritchie is Sec. of State his defense attorney is the attorney general's office.)
He made a point of saying the signature method, while still on the books, has been falling out of favor since 1982. He defended the right and authority of the Sec. of State to develop a rule to carry out the statute in light of new technology and developments (which is pretty common, although it comes across as stunning to the MNGOP right now. The legislature passes a law and adds, "The Secretary of _____ will develop and implement policies to carry out sections 4-11 within the next 2 years.") And in closing Gilbert kept leading the argument back to the numbers involved: 28 (possibly) excess votes among 800,000 cast in 3 counties. De minimus indeed! (See last diary for ways "excess ballots" appear for non-criminal reasons.) He got a fairly friendly reception.
Round 3) Finally Marc Elias of Team Franken fame stepped up for 10 minutes. From the outcome, it was all he needed.
Elias called the signature issue "a red herring." Signing in has to do with fraud. And this case — and the outcome of the recount — is about counting votes, he said.
---Jay Weiner, Minn Post
uptakemn:
Courts should be skeptical of charges that aren't made until ballots have been opened: Marc Elias
----The UpTake Live blog
Round 4) Diane Bratvold for Emmer took her 5 reserved minutes to close. She again seemed to press for a hyper-specific application of the statute and more or less ignore the administrative law/rule.
THE EVENING ANNOUNCEMENT
The Justices finished and marched out after a mere 45 minutes (3:15pm.) By 4:45 they had issued....a RULING!
Yep, just like that. Kossack Rieux was up with a fast diary here:http://www.dailykos.com/...
The ruling was QUITE brief:
Tom Emmer, the Republican Party’s candidate for governor..... alleging that the Minnesota State Canvassing Board was about to commit an error in certifying the correctness of the results of the November 2, 2010, general election.
Then:
IT IS HEREBY ORDERED THAT the petition be, and the same is, denied. So as not to impede the orderly election process, this order is issued with opinion to follow.
Petition denied.
Now let me ask all the lawyer types in the house two things:
1) How common is this approach of issuing a decision very nearly on the spot, with opinion to follow?
True, the Canvassing Board meets this morning for its first meeting. They will certify vote totals from all 87 counties, including absentees, military, etc., determine the governor's race is closer than 0.5%, and formally order a Recount (start date, Nov. 29).
Did the Court take this into account? Their words: "so as not to impede"?
2) Is it reasonable or rational to assume that by moving this quickly and with order before opinion, that the decision was likely unanimous?
Of course it is reading tea leaves but it seems to me if there was a 3-2 split or even a 4-1 the justices would have wanted to ponder things. As it is this has the air of "nnnaaaahhhhh....get outta here!"
REACTIONS:
Star Trib bloggers mostly saw this as a setback for the GOP/Emmer.
lawnonymous: @mitchpberg It was. Admin. law is also law. It governs the effectiveness of rules, and Emmer's petition ignored it.
jacobob: RT @JeffRosenberg: Once again, GOP judges affirm Ritchie's administration of an election.
SNARK
cacotter: @jkfecke: RT Stupid MNSC and their "deciding" based on the "law." How is the GOP supposed to drag this out now?
From the Uptake Live Blog
tomscheck:
Justices really pursuing whether election law is outdated when it comes to counting voter signatures.
Comment From lawnonymouslawnonymous: ]
I find it highly unlikely the court will invalidate the SoS rule based on this presentation. Which isn't to say they won't come up with another "split the baby" ruling.
And maybe the best summary of the day, from TPM's Eric Kleefeld:
[Comment From Eric KleefeldEric Kleefeld: ]
it seems to me that team emmer are playing a much stronger and smarter style than coleman's folks did - but with a far worse hand dealt to them
Jeff Rosenberg over at MN Publius has a quick analysis (just 1 page) on why Emmer's petition failed: It was asking election officials to do their work of counting and tabulating all over again...for NO GOOD REASON. Well that could be a pretty good reason for the speed of the ruling I'd say.
http://mnpublius.com/...
Dayton Recount Director Ken Martin:
"We’re very pleased with the prompt decision by the Minnesota Supreme Court. We look forward to tomorrow’s state canvassing board meeting and the certification of the election results, which currently show Mark Dayton with an unofficial 8,770-vote victory in the governor’s race."
From Emmer's side (a little stunned? Surprised they lost so quickly?) From Roper & Kaszuba at the Star Tribune:
In a brief filed Monday, attorneys for Emmer had said that if the court did not act "quickly," events might move to a legal contest that "may well drag out this election into the beginning of 2011."
But after making their case before the justices, Republicans appeared less certain. GOP attorney Tony Trimble would not say whether they planned to file a lawsuit. "We'll proceed with the administrative recount," he said. "Who knows what other issues might arise as these procedures move forward?"
THAT'S THAT? NOT QUITE
So now the State Canvassing Board will meet this morning at 9:00am., OOps! 10:00am. Sec. of State Mark Ritchie will pass out Orange-bound copies of "Recounting Minnesota" from 2008 by the WineRev (available here:
All Things WineRev). While thumbing through their copies Board Members Anderson, Stras, Reilly and Johnson will check everyone's math from across the state, shudder at what happened last time, order the Recount in the Governor's race, and say silently to themselves, "Well at least all THAT (from 2008) won't happen again."
Maybe. Last time during the Senate Recount both sides got to sit in on every precinct's Recount with a designated "challenger." Both Franken & Coleman's people could challenge a ballot on several grounds so that it would need to be sent to the State Canvassing Board for final disposition (IE whether it would be counted.) At its peak almost 6500 ballots were potentially in the stack (with the margin between the 2 candidates at 225, so it was anybody's game.)
The Board that year saw this coming and had a couple meetings with both sides to growl at them to knock off the escalation and reduce their challenges (you can UN-challenge a ballot before the Board looks at it.) The final number was about 1400, which the (5-member) Board sawed through in about 4 days.
Fresh off yesterday's defeat at the Supreme Court to have the precincts match voters and ballots by voter signatures, the Emmer camp is back to try their luck...with the Canvassing Board! Last week Emmer attorney Eric Magnusson (former chief justice back in private practice; MEMBER of the the Canvassing Board 2 years ago) sent Sec. of State Mark Ritchie a letter, asking the Board to so order the counties to recount by matching signatures.
Also, the laws regarding ballot challenges and stray/identifying marks have been tightened to narrow the grounds for challenging and giving more discretion to county election officials in a Recount to decide at that level "this is a stray mark. To challenge this is a frivolous challenge. Challenge denied." (This is designed to hem in what happened 2 years ago.)
Magnusson's letter ironically (and I mean a Lake Superior iron freighter load of iron-y!) asks the Board limit the local discretion...so that many/most/all of these challenges will be decided by the Canvassing Board!
Is this a stall? Is Martin Luther Protestant?
The math is about 2.2 million ballots being recounted in 87 counties by 35,000 poll workers, several of whom in each of 4136 precincts are local judges empowered to rule a challenge frivolous. Or let a 5 member Board do it. Which will be slower?
Mark Ritchie and the Board will rule on the request TODAY! (And there will likely be a dead run to the MN Supreme Court by whoever loses the ruling. The Vikings will only be able to envy that sort of a determined, relentless running attack between the Board meeting at the Court's filing window.)
Rachel Stassen Berger caught that little story last week and wrote it up here for the Star Tribune:
http://www.startribune.com/...
_______
OK that ought to keep you warm on this icy, frosty morning until the Inter-toobz warm with the glow of the Uptake's live stream broadcast of the Canvassing Board meeting, TODAY at 9:00am OOps, 10:00am CT. Until then thats the latest from yust southeast of Lake Wobegon.
Shalom.