Saturday, November 20, 2010

Politics and Law: The Real Issues Behind the Minnesota Gubernatorial GOP Recount Challenge

Alexis DeTocqueville once stated in Democracy in America: “There is hardly a political question in the United States which does not sooner or later turn into a judicial one. Consequently the language of everyday party-political controversy has to be borrowed from legal phraseology and conceptions.” How true that is. Behind every legal question is a political issue. The same is true with the Minnesota Republican Party going to court this week asking for a reconciliation of votes in the 2010 gubernatorial election, claiming there are phantom votes out there that may have cost Emmer the election.

This is a legal challenge without merit. However, the issue is not about the law, but laying the political foundation or cover for a possible legal challenge to delay the seat of Dayton after he is probably declared the winner in mid-December.

Let us look at the so called legal claim. It asserts that the Hennepin and Ramsey County election officials have failed to undertake a reconciliation of votes after the election. Stated simply, there are more votes or ballots than actual voters–thus phantom or manufactured votes. In effect, vote fraud. The suit asks for reconciliation to take place before the State Canvassing Board meets to order a recount.

The suit is meritless and the timing of it is interesting. The period between election day and when local canvassing boards meet and then before when the State Board meets, is set up for election officials to finalize the count. This is routine and happens every election where the vote totals change due to counting and reconciliation. Thus, the lawsuit–when you cut to the chase–is to order the election officials to do the job they are already doing! Big deal.

The suit came about one week before the State Canvassing Board will meet. This is legally significant. As I point out in a Law and Politics piece by Paul Demko a court will likely invoke a well established administrative law rule that requires you to exhaust your administrative remedies before going to court. What this means is that the courts will not act until the election officials have finished doing their job. If when they are done there is a problem then the courts will act. Moreover, another legal doctrine comes into play–injury. Even if there are phantom votes, it is possible that the Canvassing Board and then eventual recount will find and correct the problem. Until such time, Emmer has suffered no real legal injury. Therefore, the court will not act.

Any lawyer who has taken administrative law or graduated from law school kindergarten knows these legal doctrines. So why file the suit? Enter politics.

First, Andy Birkey of the Minnesota Independent points out the affidavits filed by the GOP in the suit where mostly from Republicans. This fact, along with the flimsy legal assertions, raises suspicion, as I point out in that piece, that the suit is political. But what is the political motive?

Quite simply, I suspect that most Minnesotans do not want another recount but the law will require it. There is little indication that Dayton’s 8,700 vote led will change and he will not emerge the winner. In fact, to the best of my knowledge, no candidate with a lead this large has ever had it reversed on a recount. Thus, when on or around December 14, when the Canvassing Board declares Dayton the winner, Emmer and the GOP will have a hard time convincing Minnesotans that they have meritorious legal claims (that could reverse the election) justifying going forward. They need political cover. That is what this suit and their rhetoric are about now.

The goal is twofold: First, to raise suspicions in the minds of Minnesotans that there are serious legal questions about the race. Do that by raising questions of phantom votes, voter fraud, of manufactured votes. All this is an effort to provide political cover for a suit to delay seating Dayton so that they can have control of the Legislature and the Governor’s office for a few precious months. Over the next few weeks look to see allegations of fraud increase. Look to rhetoric stating “We want to make sure every vote counts” or “We are bringing this suit just to make sure the election is fair,” all as ways to justify a court challenge.

The second goal is to placate supporters. Face it, Emmer and the GOP ran a bad gubernatorial campaign and lost to Dayton who ran a good one. There is finger pointing and blame going around. Sutton and the GOP raise this challenges to shift the blame elsewhere. We did not lose, the other side cheated or won by fraud. This suit then simply is to comfort the faithful base.

About a week ago I was standing in the Hamline parking lot in the rain talking to my law school dean. He asked me what legal theories would justify a court challenge in the gubernatorial race. I said I could not come up with any serious enough that would eventually change the outcome. That is still my sense today.


  1. This is all correct. I hope to see I write-up for publication in the local papers and your appearances on almanac and various other news shows explaining this to people, and debunking these spurious claims.

  2. Is reconciliation required by statute? Yes.

    Was reconciliation performed as required by law? No, by the admittance of at least one metro county.

    Nothing spurious there whether or not you think it will make enough difference to alter the result.

  3. David:

    Look at my new post. Reconciliation is unconstitutional and it will not make a difference.

  4. If it is unconstitutional then somebody should challenge it in court and get the appropriate ruling, not do as one of the metro counties did and simply ignore it. At least one justice on the MN SC didn't seem to think it unconstitutional and found it disturbing that counties were disregarding the law.