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MN-GOV: Epic Pre-Recount Analysis

By TJHalva | 1 point | November 9, 2010 at 9:02:05 PM CT 0 Comments

It’s been a week since Minnesota held their very close Gubernatorial Election; here are the current results from the Secretary of State’s website:

CandidateVotesPercent %
Mark Dayton (D)919,23143.63
Tom Emmer (R)910,48043.21
Tom Horner (MNIP)251,50311.94

Source: Minnesota Secretary of State Unofficial Election Results at 2:50:14 PM on 11/9/2010

The vote totals continue to fluctuate, with Dayton having lost 3, Emmer gaining 100, and Horner losing 8 since last Wednesday. The net change in this time period is +103 to Emmer and the overall lead has decreased to 8,751 from 8,854. The Associated Press has yet to declare any candidate the winner despite the fact that they do so in 2008 when the margin was far less. This is curious, either they learned a lesson from 2008 or they have their own agenda. Mark Dayton has also not declared victory, nor has Emmer conceded. Both candidates are reportedly preparing for the transition.

Mark Ritchie, the freshly re-elected Minnesota Secretary of State, posted a press released on November 5th detailing an intended recount schedule, if necessary, for the 2010 Gubernatorial Election:

Office of the Minnesota Secretary of State Announces
Proposed Timeline of a Statewide Recount in 2010 Gubernatorial Election

St. PAUL, Minn. - Nov. 5,2010 -The Office of the Minnesota Secretary of State released a proposed recount schedule to be followed should a recount in the 2010 gubernatorial election be required by law and approved by the State Canvassing Board when it meets on Nov. 23. Minnesota law (Minnesota Statutes 204C.35) requires a hand recount when the vote margin between candidates for state, judicial or federal office is less than one-half of one percent. Election results remain unofficial until certified by the State Canvassing Board. Proposed Schedule:

Initial meeting of the State Canvassing Board:

November 23, 2010: 10 a.m.
Room 10, State Office Building, St. Paul

- certification of election results
- determination of the need for any automatic recounts
- designation of state recount official
- adoption of a recount plan

Recount begins at locations around the state:

November 29, 2010 9 a.m.
(Locations to be decided)

Deadline for deputy recount officials to finish sorting the ballots:

December 7, 2010

State Canvassing Board meetings:

December 8, 2010 9 a.m.
December 9, 2010 9 a.m.
December 10, 2010 1 p.m.
(Location to be decided)

- certification of any recounts in state House races
- determination of challenged ballots in the gubernatorial recount

State Canvassing Board meeting:

December 14, 2010 (time and location to be decided)

- certification of gubernatorial election

Source: Proposed Schedule for 2010 Gubernatorial Election Recount via The Minnesota Office of Secretary of State

The above schedule appears to constrain the timeframe of the proposed 2010 Gubernatorial recount to a greater degree than the 2008 version. Here are the highlights from a similar memo in 2008:


SAINT PAUL, Minn.—Nov. 7, 2008—Minnesota Secretary of State Mark Ritchie announced today preliminary details about how the statewide recount will be conducted.

"Today my staff and I met with representatives of the U.S. Senate campaigns to make plans for conducting this historic statewide recount," Ritchie said. "This requires the cooperation of all parties to ensure an orderly recount process."

The recount will be conducted in the local jurisdictions in which the ballots were cast. More than 70 counties and 30 cities have already agreed to assist by serving as Deputy Recount Officials. Details about the date, times and locations for the recount will be compiled and made available to the candidates and the public by the end of the day Wednesday, Nov. 12. The state canvassing board will approve the recount plan at their meeting on Nov 18. Deputy Recount Officials must complete the recount and submit their results to the Secretary of State by Dec. 5. The state canvassing board for the recount will meet on Dec. 16, and will aim to conclude their work by Dec. 19.


Source: Preliminary Plan for Statewide Recount of the U.S. Senate Race via The Minnesota Office of Secretary of State

Some of the scheduling differences are affected by recent changes to law; e.g. MN Statue 208.05
which governs the State Canvassing Board was ammended to allow another statute, to determine that the date of the State Canvas should take place on the third Tuesday after the election, not the second. A table is presented below comparing the actual dates of major events in the 2008 Senate Recount to the proposed timeline of the 2010 Gubernatorial Recount:

Event2008 US Senate2010 Governor
Election Day Votes Certified By Canvassing BoardNov 18Nov 23
Recount BeginsNov 19Nov 29
Physical Counting EndsDec 12Dec 7
View of Challenged Ballots BeginsDec 16Dec 8
Challenges FinalizedDec 30Dec 10
Wrongfully Rejected Absentee Ballots CountedJan 5, 2009
Recount Finalized By State Canvassing BoardJan 6, 2009Dec 14
Contestee Files Election ContestJan 6, 2009
Election Contest Trial BeginsJan 26, 2009
Election Contest Court RulesApr 13, 2009
Contestee Appeals Election Contest Court Ruling to MN Supreme CourtApr 20, 2009
MN Supreme Court RulesJun 30, 2009
Election Certificate IssuedJun 30, 2009

The recount itself should conclude on December 14, if everything goes to plan; in 2008 the recount was supposed to be finalized on December 19, 2008, but it was not certified until January 6, 2009. Inauguration Day is January 3rd, and while it is probable that the recount result will be certified, it is unlikely that an actual winner will have been certified by that date. At a certain point the process can no longer be considered a recount, it transitions to a quest for Election Certificate by the winner of the recount and a legal battle for the loser. The purpose of the State Canvassing Board is to declare a winner and certify the results of an election or recount; this does not necessary entail the creation of an Election Certificate, although it facilitates the process. An Election Certificate can only be issued once the State Canvassing Board has declared a winner and the seven day period for filing an election contest has expired.

There are several key factors that will affect the duration of the entire process; each of these factors can largely be divided into two subdivisions; the physical process and the legal process. I’ll first begin discussing what I call the physical process.

There are a finite number of ballots and a finite number of votes that must be counted. Each of these ballots and each of these votes will be manually recounted, beginning on WWW. This process is detailed in MN Statute 204c.361 and essentially states that an election official is to make a determination for each ballot in accordance with MN Statute 204C.22; if a representative from an involved campaign disagrees with the assessment of an election official they may challenge that decision. These challenges are then resolved by the Canvassing Board. The process is essentially unchanged from 2008 with one notable exception. In 2008 each precinct asynchronously preformed their own recount and reported their results to the County Canvassing board; in 2010 a central county location will be used for all precincts within a given county.

There are physically less ballots in 2010 than there were in 2008 simply due to the number of ballots cast. This should translate into a faster recount and subsequently fewer challenges. There is also a very recent, from 2008, record of challenge effectiveness. I have a complete set of challenged ballots from 2008, I’ll see if I can’t provide some sort of interface to review them at some point in the future.

Once the ballots are recounted and the challenges resolved, the majority of the physical process will have been completed. There still however remains one threshold; the review of rejected absentee ballots. This was a major issue in the 2008 election, for good reason, but is unlikely to play a significant role in the 2010 election for any valid reason. To begin, there were around 12,000 rejected absentee ballots in 2008 but only 3,021 this time around. Of those 12,000, 955 were re-reviewed before the State Canvassing Board declared the recount complete and 351 were later included through the Election Contest Court; so 1,306 in total or a little less than 11%.

Absentee voting law has also since been amended to provide a better mechanism of alerting absentee voters whether their absentee ballot was rejected. If a voter’s absentee ballot was rejected, they would be notified and still allowed the opportunity to vote by either re-casting another absentee ballot five days before Election Day or by voting on Election Day in-person. Because of this change in absentee ballot law, it is my opinion, that a grand proportion of the 3021 currently rejected absentee ballots are properly rejected.

In acknowledging the current margin of 8,854, and that the fact that entire process in 2008 resulted in just a 787 vote swing, since a day after the election to the conclusion in June, it is unlikely that these 3,021 currently rejected absentee ballots will materially affect the outcome of the 2010 certification.

The loser of the recount will still likely file an election contest and initiate the legal process; it is my expectation that any such filing will contain references to these rejected absentee ballots whether merited or not. Without going into detail about what is likely to be contained within an election contest, I want to talk about the process of filing an election contest:

Subdivision 1.Manner; time; contents.

Service of a notice of contest must be made in the same manner as the service of summons in civil actions. The notice of contest must specify the grounds on which the contest will be made. The contestant shall serve notice of the contest on the parties enumerated in this section. Notice must be served and filed within five days after the canvass is completed in the case of a primary or special primary or within seven days after the canvass is completed in the case of a special or general election; except that if a contest is based on a deliberate, serious, and material violation of the election laws which was discovered from the statements of receipts and disbursements required to be filed by candidates and committees, the action may be commenced and the notice served and filed within ten days after the filing of the statements in the case of a general or special election or within five days after the filing of the statements in the case of a primary or special primary. If a notice of contest questions only which party received the highest number of votes legally cast at the election, a contestee who loses may serve and file a notice of contest on any other ground during the three days following expiration of the time for appealing the decision on the vote count.


Source: MN Statute 209.021 via Minnesota Office of the Revisor of Statutes

Once the State Canvassing Board certifies the result of the recount, or for that matter an election result, the loser has between five and ten days to file an election contest; for the Gubernatorial Recount, the loser will likely have seven days to file an election contest. If an Election Contest is file, and Election Certificate cannot be issued to the winner until after the legal process has ended:

Subdivision 1.Preparation; method of delivery.

The county auditor shall prepare an election certificate for every county candidate declared elected by the county canvassing board, and the secretary of state shall prepare a certificate for every state and federal candidate declared elected by either a county canvassing board or the State Canvassing Board. Except as otherwise provided in this section, the secretary of state or county auditor, as appropriate, shall deliver an election certificate on demand to the elected candidate. In an election for United States representative, the secretary of state shall deliver the original election certificate to the chief clerk of the United States House of Representatives. In an election for United States senator, the governor shall prepare an original certificate of election, countersigned by the secretary of state, and deliver it to the secretary of the United States Senate. In an election for state representative or state senator, the secretary of state shall deliver the original election certificate to the chief clerk of the house or the secretary of the senate. The chief clerk of the house or the secretary of the senate shall give a copy of the certificate to the representative-elect or senator-elect. Upon taking the oath of office, the representative or senator shall receive the original certificate of election. If a recount is undertaken by a canvassing board pursuant to section 204C.35, no certificate of election shall be prepared or delivered until after the recount is completed. In case of a contest, the court may invalidate and revoke the certificate as provided in chapter 209.

Subd. 2.Time of issuance; certain offices.

No certificate of election shall be issued until seven days after the canvassing board has declared the result of the election. In case of a contest, an election certificate shall not be issued until a court of proper jurisdiction has finally determined the contest. This subdivision shall not apply to candidates elected to the office of state senator or representative.

Source: MN Statute 204C.40 via Minnesota Office of the Revisor of Statutes

Franken petitioned the Minnesota Supreme Court, before the 2008 Election Contest even began, to issue an order requiring that the relevant parties, Governor Pawlenty and Secretary Ritchie, create a Certificate of Election. Franken was eventually shot down some three months later:

Filed: March 6, 2009


1. Minnesota Statutes § 204C.40, subd. 2 (2008), which provides that a certificate of election cannot be issued until the state courts have finally decided an election contest pending under chapter 209, applies to an election for the United States Senate.

2. There is no federal statutory mandate that a state issue a certificate of election by the date designated by Congress for commencement of newly-elected Senators' terms, and because the Senate has authority under U.S. Const. art. I, 7sect; 5, to seat a Senator without a state-issued certificate of election, application of Minn. Stat. § 204C.40, subd. 2, to an election for the Senate does not usurp the Senate's authority and does not conflict with federal law.

Petition denied.


Source: Supreme Court Order on Al Franken's Petition for Order to Issue Certificate of Election via

I would suspect that a similar petition, at the conclusion of a potential 2010 recount, would also fail. This realization clearly opens the door for an extended Pawlenty term as Article V of the MN Constitution states that the term of office for the governor and lieutenant governor is four years and until a successor is chosen and qualified. This means, that barring an election certificate, Tim Pawlenty retains the Governorship; this actually happened in the 1962 Governor's election so there is historical precedent although laws have obviously changed in the intervening 50 years.

This extended Pawlenty term would spell disaster for Minnesota DFLers, as they also lost control of both legislative chambers in the recent election. Can the DFL leadership do anything to stall the MN Republican agenda while the winner of the Gubernatorial Election is decided? Not likely for two main reasons.

Firstly, the Minnesota Constitution partially dictates the legislative schedule:


Sec. 12. BIENNIAL MEETINGS; LENGTH OF SESSION; SPECIAL SESSIONS; LENGTH OF ADJOURNMENTS. The legislature shall meet at the seat of government in regular session in each biennium at the times prescribed by law for not exceeding a total of 120 legislative days. The legislature shall not meet in regular session, nor in any adjournment thereof, after the first Monday following the third Saturday in May of any year. After meeting at a time prescribed by law, the legislature may adjourn to another time. "Legislative day" shall be defined by law. A special session of the legislature may be called by the governor on extraordinary occasions.

Source: Article IV of the Minnesota Constitution

If the DFL controlled legislature could convene, they could either create or amend current law or impeach Pawlenty and then subsequently impeach would-become-governor, Carol Molnau; the President of the MN Senate would then become Governor for the remainder of Tim Pawlenty's term. Nothing can be done without the capability to convene the legislature; a special session would be required and Pawlenty isn't about to give the legislature that opportunity. There is also no filibuster within the Minnesota Senate, so the DFL is literally powerless.

If Dayton wins the Recount, as is likely, Emmer can effectively postpone the granting of an Election Certificate for a while; exactly how long is hard to say. During this period, Pawlenty or at the very least a GOP selected member of the MN Senate seems destined to retain the Governorship.


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