Emmer petitions MN Supreme Court over ballots. [UPDATES]

Every vote should count, right?

Every vote should count, right?

Tom Emmer's legal eagles are taking another shot at helping their candidate beat Mark Dayton in court.

They have petitioned the Minnesota Supreme Court to order every election judge across the state to prove that the number of voters and the number of votes cast in their precincts are the same. (Update after the jump: The court, and Dayton, respond.)

GOP state chair Tony Sutton pugnaciously announced the move yesterday, telling reporters at press conference that, "Phantom votes have no place in the final vote count."


He didn't produce any proof that those "phantom votes" actually exist, but the assertion had the desired effect casting Mark Dayton's roughly 9,000 vote lead over Emmer as illegitimate.

According to the Republican petition:

"There is strong and growing evidence that in the 2010 general election many local election officials did not determine the number of ballots to be counted or follow the required statutory reconciliation procedure before preparing summary statements for their county canvassing boards."

Maybe that rhetoric is a little overblown. Minnesota has 4,136 precincts spread across its 87 counties. The Republicans' "strong and growing evidence" comes by way of affidavits from judges in just 11 of those precincts, some which are in Ramsey, Hennepin and Dakota counties.

The process of matching these two numbers is called reconciliation. Basically, a state law requires that if a precinct has more votes cast than actual voters, the election judge is ordered not to count every vote, whether it was cast legally or not.

The process of elimination starts with illegal ballots, "folded together" that "were cast by one voter." Think: ballot stuffing. Those are set aside.

Next come ballots not properly signed by election judges. Those are illegal and get set aside too.

If the numbers still haven't been reconciled, then we come to the more controversial remedy: "One judge, without looking, shall withdraw from the box a number of ballots equal to the excess."

That is to say, if you voted legally on Election Day, your vote may not be counted.

Sutton tried to claim the moral high ground that this legal tactic was simply a way to ensure a fair election for all Minnesotans. "It doesn't matter to us" whether Emmer or Dayton benefits from the process, he told reporters yesterday.

That claim flies in the face of common sense; we're pretty sure the Republicans wouldn't be heading to court if Emmer was leading Dayton by roughly 9,000 votes, rather than the other way around. But that's what they've done, and they want reconciliation to happen before the recount begins.

Now the matter is in the hands of the State Supreme Court, which would have heard from the Republicans one way or another on the matter, before or after the State Canvassing Board meets on Nov. 23. Again from the Emmer petition:

"While Petitioner intends to request the same action from the State Canvassing Board as part of its Recount Plan on Nov. 23rd, it is not clear that the State Canvassing Board will grant the Petitioner's request. Unlike this Court, the State Canvassing Board does not have authority over local election officials."

Not surprisingly, the Dayton recount team calls all this an effort to delay the inevitable.

Update: Dayton told KFGO in Fargo today:

"I'm not a lawyer and I'm trying to figure out what they?re doing but I?m an old hockey player and it's sort of like you can lose the game 6 to 4 and then you ask the judge to throw all ten goals into the lottery and you pull out six of them and hope that those are yours rather than the other teams. It seems strange to me but I just live here."

Update: The GOP claim may also be based on a faulty premise. The Star Tribune reports that Republicans center their charge of shoddy election judge practices on a state statute that wasn't followed. However, an administrative rule with the force of law was followed by election judges in at least one county: Ramsey. At the very least, this muddies the Republican claims.

Update: Minnesota Supreme Court Associate Justice Alan Page ordered that all filings from all parties be submitted to the court by Friday, 4 p.m.

If oral argument on the petition is necessary, such argument will be held on Monday, November 22, 2010, at 2:30 p.m. in Courtroom 300, Minnesota Judicial Center, 25 Rev. Dr. Martin Luther King Jr. Boulevard, Saint Paul, Minnesota.Petitioner shall have 20 minutes for argument, followed by 20 minutes for all respondents who wish to be heard. The parties will be notified on Monday, November 22, if oral argument will be held.

Stay tuned.