There were no surprises in the rejection on Monday of Emmer’s petition before the Minnesota Supreme Court demanding reconciliation to take place prior to the recount beginning. That decision, along with the State Canvassing Board’s determination that the difference between Dayton and Emmer is 8,770 votes, or less than 0.5% (less than one-half of one percent) means the state mandated recount will begin on Monday.
But what if Emmer got his way? By that, what if in fact it is the case that there are phantom votes in Minnesota? What if in fact there are more ballots than those who voted, necessitating reconciliation? What if, per state law, election officials did randomly remove ballots from those lawfully cast as specified by state law, could Emmer win? In theory yes, but the math is against him.
How to do Reconciliation
Think about how reconciliation would work. Assume that there are 1,000 overvotes in the state of Minnesota. This means there are 1,000 more ballots than signatures in the registry. This means that 1,000 votes would have to be removed from around the state to bring the total number of ballots in line with the number of people who actually voted. Both Dayton and Emmer received approximately 43% of the statewide vote. All things being equal, a random distribution of 1,000 ballots removed across the state would mean 430 removed that had voted for Dayton and 430 for Emmer. Emmer is thus still behind by 8,770 and he has gained nothing. He still loses.
For Emmer to win on reconciliation, he has to assume more of the ballots removed per reconciliation belong to Dayton as opposed to him. Consider some possibilities.
Let us assume that if ballots had to be removed, 60% of all ballots removed cast a vote for Dayton and 40% cast a vote for Emmer. We shall assume no ballots removed voted for Horner. With this 60%/40% ratio there would have to be 43,850 ballots removed for Emmer to come even with Dayton and negate his 8,770 lead.
Spelled out in more detail:
.6x X 43,850 =26,310
.4x X 43,850= 17,540
Assuming 60% of the ballots removed is rather optimistic for Emmer. Assume instead that 50% of the ballots removed are cast for Dayton and 40% are for Emmer. The remaining 10% are for Horner and other candidates. With this ratio there would have to be 87,700 ballots removed for Emmer to pull even.
Spelled out in more detail.
.5x X 87,700 = 43,850
.4x X 87,770 = 35,080
But is there that much Fraud or Error?
Thus, for Emmer to tie Dayton, he would need at least 43,850 ballots to be removed. More likely, he would need to have closer to, if not more than, 87,700 removed. This means there has to be at least 43,850 overvotes or phantom votes (to use Emmer’s term) for him to at least tie Dayton. Given that there were 2,123,369 ballots cast in 2010, one has to assume at a minimum that 2% of all the votes cast were phantom, with it perhaps closer to 4%. This means that at least 2-4% of all ballots cast were improperly counted and need to be removed.
The degree of fraud or error to produce these numbers is unlikely. Under no conceivable circumstances can I imagine this type of error rate in the state. But this is precisely what Emmer has to assume if he were to win on his reconciliation argument.
What is my point?
The point is simple. Emmer cannot win even if he gets his way and were he to have won or would win his reconciliation legal argument. The math is against him given the number of ballots and errors that would have to occur for him to prevail. The outcome (Dayton winning) does not change if Emmer would have won his legal argument.
A Legal Issue: Reconciliation is Unconstitutional
Finally, assume that we do have to do reconciliation if there are discrepancies as Emmer alleges. The stated statutory remedy is randomly removing ballots. If that were to occur I think the state law is unconstitutional. By that, if voting is a fundamental right protected by the First and Fourteenth Amendments (and that is true), subjecting voters to random denial of having their ballot counted because of election official counting errors or mis- or maladministration is clearly a denial of a right to vote. I think the current state law is unconstitutional