Wednesday, December 8, 2010

Emmer Concedes: The Futility of Going to Court

What took Emmer so long to concede the election? Many of us saw the futility days, if not weeks ago, but Emmer troopered on. But many factors came to a head on Tuesday making it clear that it was over.

The recount process was effectively over and Mark Dayton maintained a nearly 8,800 vote lead. The Minnesota Supreme Court ruled against Emmer on his argument about reconciliation and the matching of the number of ballots with voters. He had withdrawn almost all of his frivolous and non-frivolous ballot challenges, and there appeared to be no other place to add to his totals. The math was against him, and opinion polls showed nearly two-thirds of Minnesotans said he should concede.

All of these factors were important considerations to his decision. But, perhaps the most underrated variable or factor transpired last Friday when Justice Paul Anderson–in his capacity as a member of the Canvassing Board–hinted to Emmer’s attorney (and former chief Justice) Eric Magnuson that bringing a court case might violate state law and legal ethics. It was from that point on that Emmer withdrew many challenges, leading to the concession on Wednesday.

What was Anderson talking about and how did it affect Emmer’s decision to concede? What might his comments say about others still thinking of challenging the election outcome?

Emmer Concedes..But Will Others?
Emmer has conceded and stated he will not raise a legal challenge to Dayton. But will the Republican Party or other loyal supporters forego a challenge? That is the great question. On December 14, the State Canvassing Board will meet, likely declaring that Dayton has the most votes and then issuing him an election certificate. However, what is not clear is whether the GOP or someone else will contest the election outcome, thereby forcing a trial, the delaying of the issuance of an election certificate, and the possible seating of Dayton as governor on January 3. This delay means Pawlenty stays on as governor–with a Republican legislature–foreshadowing an opportunity to adopt a legislative agenda many conservatives have wanted for decades.

Filing an election contest is tempting. Yet those who see it as a way to damage Dayton or push a Republican agenda, they should think again. Legally, it is not so clear that a challenge would get far and instead, it could be dismissed quite quickly.

Bringing the Election Contest
Even if Tom Emmer opts not to contest the election that does not end it. Minnesota Statute §209.02 permits any voter in the state to bring a contest, challenging the “irregularity in the conduct of an election or canvass of votes, over the question of who received the largest number of votes legally cast, over the number of votes legally cast in favor of or against a question, or on the grounds of deliberate, serious, and material violations of the Minnesota Election Law.” This is a broad statute, permitting almost anyone in the state to challenge the election for almost any reason.

Even if Emmer does not contest it, it does not preclude State GOP Chair Tony Sutton and the Republican Party, or any other party in the state from doing it. Some interest group or party could contest the election, believing it could delay the seating of Dayton for months.

Responding to a Contest
But if a contest occurs, will it be a repeat of the nearly six-month delay in seating of a winner as occurred with Franken and Coleman? No, there are critical differences here.

First, the vote difference here is enormous by comparison. The math is against Emmer winning. There are not enough votes in dispute to reverse Dayton’s lead. Additionally, there are really no good legal arguments left for Emmer to raise now that the Supreme Court ruled against him. There is also no evidence of serious or widespread voter fraud. In short, whatever legal arguments Emmer or a third party could raise, they would not change the outcome of the election–Dayton still wins.

If a contest is brought, Dayton’s attorneys could respond by saying that they concede all the legal arguments raised by the other side but nonetheless it would still not change the outcome of the election. This is sort of like asking for a directed verdict or a summary judgment in the case. These options could dispose of the contest quickly.

But a second option could prevent the case from going anywhere. Rule 11 of the Minnesota Rules of Civil Procedure precludes lawyers from filing suits that are frivolous that seek to harass, cause unnecessary delay, or are brought for other improper purposes. Similarly, legal ethics, specifically Rule 3.1 of the Minnesota Rules of Professional Conduct, prohibits attorneys from raising frivolous claims. Lawyers who bring such cases run the risk not only of having them immediately dismissed but also face sanctions from the courts. Every first year law student learns to fear Rule 11 sanctions.

One could argue that any election contest that simply seeks to delay the seating of Dayton is frivolous and runs a Rule 11 risk. Moreover, even if there are some outstanding legal issues or questions, bringing a court case here is risky. Unless one can demonstrate that but for these legal issues Emmer would have won, such a lawsuit could be labeled as frivolous. Dayton’s lawyers could raise a Rule 11 claim and perhaps get the case dismissed almost immediately, along with subjecting any attorney both to legal sanctions and the threat of ethical discipline.

Overall, those who think that filing a contest is a simple way to delay matters should think again. Their suit might easily be dismissed and their attorneys may face severe legal and ethical sanctions.

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