Looming gubernatorial recount may allow Pawlenty to position himself for 2012

Haunted by the memories of the 2008 election between former Sen. Norm Coleman (R) and current Sen. Al Franken (D), Minnesota is bracing for yet another contentious recount, this time to determine the state’s next governor.

Just as the ‘08 outcome had national implications — Franken became the temporary 60th Democratic Senate vote in 2009 (due to Sen. Ted Kennedy’s death not long after) — a delayed decision on the 2010 gubernatorial race would have wide repercussions at both the local and national levels. The state legislature, which flipped to the GOP on Tuesday, could quickly pass conservative bills while a Democratic governor, Mark Dayton, waits in limbo. All the while, Republican Gov. Tim Pawlenty finds himself in a unique posturing position before his probable bid for the 2012 Republican presidential nomination.

After all precincts reported their totals on Wednesday, former U.S. Senator and Democratic candidate Dayton held a narrow 43.63–43.21 percent lead over his Republican opponent, state Rep. Tom Emmer, in the gubernatorial campaign. Tom Horner, a third-party candidate running for the Independence Party, drew 12 percent.

Mark Dayton leads Tom Emmer by nearly 9,000 votes. Photo: Minnesota Independent

With only 8,856 votes separating Dayton and Emmer, media outlets have held off on calling the race, and, so far, neither candidate has declared victory nor conceded defeat. Vote tallies are unofficial until the State Canvassing Board meets on Nov. 23. Counties will examine their vote totals and the final numbers could still shift before that date, but as long as Dayton and Emmer remain within 0.5 percent of each other, the state will automatically conduct a recount, likely starting on Nov. 29.

The term for the next governor is scheduled to begin on Jan. 3. If the recount drags on past that date, the constitution calls for the current executive to remain in office. Pawlenty issued a press release Wednesday affirming that he will stay in the governor’s office until a new governor is sworn in.

“My administration is fully committed and prepared to accomplish the swift and orderly transition to the next governor as soon as a final determination is made. As required by Article V of the Minnesota Constitution, I will continue to serve as Governor until a new governor takes the oath,” the release said.

While the gubernatorial campaign remains in limbo, Republicans swept both sides of the state legislature this week. Pawlenty faced a hostile Democratic legislature during the entirety of his eight years in office. Democrats at times held veto-proof majorities, forcing Pawlenty to push only a limited form of his ideological goals during his tenure. If the final decision on certifying the next governor drags into 2011, Pawlenty and state Republicans could rush through numerous pieces of conservative legislation, allowing the governor to add accomplishments he can tout to the Republican base when he hits the campaign trail in Iowa and New Hampshire next year.

It is difficult to discern exactly how long a recount could last, but the Coleman-Franken scenario from 2008 offers insight into the process. The state declared Franken the initial winner after a hand recount of votes lasted seven weeks. Reforms to the election process and a smaller pool of votes cast during a midterm year means a recount should proceed quicker in 2010, likely to last three to four weeks, according David Schultz, a professor at the Hamline University School of Law in St. Paul.

If that’s the case, the outcome should, theoretically, be known before the end of the year, just in time for the next governor to take the oath on schedule. However, like 2008, it is not the recount itself that would extend the race but rather subsequent lawsuits that would endlessly drag out the final result. If the losing candidate chooses to file a lawsuit challenging those results, the state Supreme Court chief justice appoints a three-judge panel to review the complaints. That decision itself can then be appealed to the state Supreme Court, the highest point it could reach in a state-level election.

Following the 2008 recount, Coleman continued filing lawsuits up the ladder in questioning Franken’s victory. The three-judge panel did not make their decision until April 2009, and then the Supreme Court’s final ruling did not come down until the end of June, when Franken was finally allowed to assume his seat in the U.S. Senate.

Differences between the current gubernatorial results and 2008 may shorten that judicial window. Unlike the few hundred votes that separated Franken and Coleman, Dayton’s nearly 9,000 vote lead should prove difficult for Emmer to overcome in the recount.

On Wednesday, Jay Weiner, journalist and author of “This Is Not Florida: How Al Franken Won The Minnesota Senate Recount,” detailed changes in Minnesota election law since 2008 that should streamline the process in 2010. “Key among the changes: Absentee ballots this time ’round were viewed and accepted by centralized absentee ballot boards in each county. No longer did tired poll workers late at night have to quickly determine if absentee ballots followed the various guidelines,” Weiner wrote. “Also, signature mismatches, an element in the Senate recounts election contest trial, have been eliminated.”

The GOP has brought in a lawyer from the 2000 Bush v. Gore case to act on Tom Emmer's behalf. Photo: Facebook

Even if continuing the recount through lawsuits would be unlikely to change the results this time around, the Republican Party has every reason to extend the process for as long as possible if Dayton appears likely to win. The state party has already taken an aggressive public posture on the recount that indicates they are willing to see the race through.

“The stakes are enormously high in this one, much in the same way they were enormously high with Franken and Coleman. I see the same political motives for filing the challenge,” David Schultz said.

At a GOP news conference on Wednesday morning, state GOP Chairman Mark Sutton strongly pushed back against those who may view Dayton’s substantial lead as a solidified victory. “We’re going to pursue this until we’re absolutely certain that all the votes were counted correctly.”

The state party has hired Washington lawyer Michael Toner, who was the general counsel for the 2000 Bush campaign, an indication that they may already be eying a post-recount lawsuit. “It looks like it’s recount part two: And this time it’s personal,” Sutton said. (When contacted with questions, Toner directed the Minnesota Independent to the communications director for the Minnesota Republican Party, who did not return e-mail seeking comment.)

“This is the exact same rhetoric they were using two years ago. They’re starting off with similar strategy … which is to claim voter fraud,” Schultz told the Minnesota Independent. Republican claims of voter fraud were bolstered on election night when Hennepin County, which houses Minneapolis and surrounding suburbs, made a tabulation error and reported too many votes. That mistake was corrected and accounted for, bringing Emmer’s results closer to Dayton’s, but state Republicans have continued to point to it as an indication that Emmer could further close the vote-total gap.

Would Pawlenty be willing to push conservative bills through a Republican legislature during litigation even if Dayton continues to hold a solid lead in the vote totals? The governor’s communications director did not respond to requests for comment, but in a press release from Pawlenty’s Freedom First PAC, the governor praised the Republican state victories.

“The historic nature of this victory cannot be overstated: For the first time since legislative races were partisan, Republicans will now have majorities in both the state House and Senate. This is a great validation of our work over the last eight years to cut spending and keep a lid on taxes,” Pawlenty wrote.

Pawlenty’s statement is in line with other Republicans’ attempts to frame the legislative victories as a governing mandate granted by voters even if the party loses the gubernatorial race. If party officials truly view the results in those terms, they would likely feel justified pushing their agenda while they still have a friendly face in the governor’s office.

“There may be powerful incentive for the Republicans to want to enact and do things very, very quickly during that time period,” Schultz said. “Get a budget passed, do all kinds of stuff when they’re guaranteed of having a Republican majority and a Republican governor.”

Pawlenty has said he will make a decision on his presidential campaign sometime during the first quarter of 2011; he did not seek a third term so that he could begin building his campaign infrastructure and increase his time spent in early voting states such as Iowa and New Hampshire. An extended recount would delay his ability to implement those plans, but it would also allow Pawlenty to build his conservative legislative credentials in ways previously prevented by a Democratic-controlled House and Senate.

Standard Republican issues of taxes and social conservative topics would likely be among the first issues addressed. Pawlenty often touts his record of not raising taxes in a liberal state when he visits national media outlets. The opportunity to pass a major tax cut — especially corporate rates that a Gov. Dayton would be unlikely to let decrease — may be too tempting for Pawlenty to pass up. One idea floated in the past that may surface again is a taxpayers bill of rights, which would essentially only allow Minnesota taxes to be raised if they are put to a popular vote.

Codifying a ban on same-sex marriage may also be addressed. Passing legislation tackling this topic would play well among the base in Iowa, one of the states Pawlenty has invested in most heavily as he eyes 2012. Three Iowa Supreme Court justices lost retention votes on Tuesday after state and national conservatives campaigned against them for their votes in ruling bans on same-sex marriage unconstitutional. Pawlenty praised their efforts to oust the judges, and passing legislation against same-sex marriage in his own state would add credibility to his statements when he speaks to the Republican base.

One issue that would immediately confront Pawlenty if he stays in office past his initial expiration date would be an opt-in to a federal Medicaid assistance program. As part of the health-care reform legislation, Minnesota has the option of gaining extra federal Medicaid aid by increasing state enrollment. That would require the state to spend an extra $188 million, but the state would be expected to gain $1.4 billion of federal assistance in return. Democrats support the opt-in, with Republicans opposed. During the budget session last year, the two sides struck a deal: Pawlenty had the option of opting-in last year –- which he declined -– and the next governor would be presented with the same choice when he or she assumed office. Dayton campaigned on taking part in that federal program, but the next governor would have to make that decision by Jan. 15, leaving the choice in Pawlenty’s hands if lawsuits prolong the election.

Patrick Caldwell is the American Independent’s Minnesota correspondent.