The Republican Party of Minnesota and Tom Emmer’s gubernatorial campaign want changes made to the recount rules ahead of the State Canvassing Board meeting on Tuesday. Specifically, Emmer wants Rule 8 changed to make inspection of challenged ballots the job of the five-member canvassing board and not the 87 county auditors. The move, which could cost more time in the recount process, comes after the Emmer campaign filed a petition with the Minnesota Supreme Court to look for “phantom votes” in all 87 counties. Dayton called Emmer’s moves “desperate” in an interview with Minnesota Public Radio on Thursday.

“Seems to me Republicans are basically questioning the basic integrity of the election process in Minnesota,” said Dayton, who added that the system had a thorough check two years ago during the Franken-Coleman recount. “I think to just cast aspersions on this, I think basically that they are desperate, they are way behind.”

He added, “It’s not just throwing ‘Hail Marys.’ It’s throwing spitballs at the wall to see which ones will stick.”

Emmer’s newest volley in the pre-recount arena is to change the rule which says that Minnesota’s 87 county auditors will determine whether or not challenged ballots have merit or are frivolous. Emmer wants that task to be delegated to the 5-person canvassing board.

Emmer is also asking the rules to be amended to include a provision to look for “phantom votes,” the same issue the Emmer team has taken to the Supreme Court.

“We are requesting that the State Canvassing Board be the only body to decide the merits of a ballot challenge during the recount in accordance with state law. Additionally, we are requesting that local recount officials be directed to reconcile the number of ballots with the number of signatures present on the election day roster (both pre-registered voters and same-day registrants), as required by Minnesota Statute,” GOP chair Tony Sutton said in a statement Thursday.

Here’s the letter from the Emmer team to Secretary of State Mark Ritchie:

emmerlettertoritchie –

Cleary, assistant chief judge at Ramsey County District Court, identifies himself as a WSJ subscriber of three decades’ standing who doesn’t always agree with the newspaper’s editorials but was particularly disappointed by this one, which he finds “long on partisan tone and short on accurate reporting.”

Read Cleary’s complete letter after the jump.

Dear Sirs:

As a subscriber of your newspaper for almost three decades, I don’t expect to always agree with your editorial viewpoint. Yet I am nevertheless very disappointed when I read an editorial long on partisan tone and short on accurate reporting.

As a member of the Minnesota State Canvassing Board, appointed pursuant to statute, I have attended all nine Board open meetings held the past seven weeks. I am knowledgeable about the proceedings as well as Minnesota’s election laws. Our members (two Supreme Court Justices, two District Court Judges, and Secretary of State Ritchie) came from all political backgrounds, openly expressed our opinions at the meetings, and can hardly be accurately described as “meek,” unless you mean “meek” by New York in-your-face standards. Your groundless attack on Secretary Ritchie reflects poorly on the author; Ritchie worked assiduously at avoiding partisanship in these proceedings.

As to the Board as a whole, all of our major votes were unanimous. We consistently followed the law in limiting our involvement to a non-adjudicative role, declining both candidate’s attempts to expand our mandate. Further, we painstakingly reviewed each challenged ballot, some more than once, to confirm that we were ruling in a consistent manner. One can only assume, based on the tone of the editorial, the numerous inaccuracies, and the over-the-top slam at Al Franken (“tainted and undeserving”?) that had Norm Coleman come out on top in this recount, the members of the Board would have been praised as “strong-willed, intelligent, and perceptive.” We won’t hold our breath waiting for that editorial to appear.

Edward J. Cleary

Assistant Chief Judge

Second Judicial District

Minnesota State Canvassing Board

Given our campaign’s unwavering commitment to ensuring that the vote of no Minnesotan is disenfranchised, today’s ruling by the Minnesota Supreme Court is both disappointing and disheartening.  The fact that the Franken campaign now rejects the notion of every valid vote being counted so they can attempt to declare victory on the basis of a broken process, and an artificial lead built on double counting of votes should concern all Minnesotans.  Today’s ruling, which effectively disregards the votes of hundreds of Minnesotans, ensures that an election contest is now inevitable.  The Coleman campaign has consistently and continually fought to have every validly cast vote counted, and for the integrity of Minnesota’s election system, we will not stop now. The Minnesota Supreme Court has made sure that an election contest will need to be filed quickly in order to ensure that an accurate and valid recount can be achieved.

The Franken campaign response after the jump.

Here is the statement from Al Franken’s recount attorney, Marc Elias, in response to today’s Supreme Court order:

Today, the Supreme Court once again affirmed the validity of the rules under which
this recount was conducted. Minnesotans have waited a long time for a winner to be
declared in this race, and today, with the last attempt to halt the counting
process now having failed, Al Franken will be declared the winner.

Statements from all three senators after the jump.

Klobuchar’s statement:

If the Canvassing Board declares a winner, that should be our senator. … [The Senate] could seat a senator pending the litigation.

Reid’s statement:

At this stage, it appears that Franken will be certified the winner by the State Canvassing Board. We’re keeping abreast of the situation and will make a decision with regard to Senate action at the appropriate point in the process.

Cornyn’s statement:

Al Franken is falsely declaring victory based on an artificial lead created on the back of the double counting of ballots. His campaign’s actions in the last several days on the issues of rejected absentee ballots are creating additional chaos and disorder in the Minnesota recount. Those actions, coupled with the recent comments by Senator Amy Klobuchar of Minnesota, who suggests seating someone even if there is an election contest, are unprecedented. Minnesotans will not accept a recount in which some votes are counted twice, and I expect the Senate would have a problem seating a candidate who has not duly won an election.

Recount, International Falls, Minn., Nov. 24. Photo: Adam Lockhart

Here’s a quick recap of the latest developments in Minnesota’s Senate recount as of mid-day Monday.

The biggest remaining pool of disputed ballots — 1,346 that that local officials rejected on Election Day for no legal reason — remain disputed. The campaigns of Al Franken and U.S. Sen. Norm Coleman differ sharply on how many should be counted; indeed, the two sides are off by an order of 10.

Yet under a state Supreme Court order they must somehow reconcile their views this week at 12 regional meetings where the ballots’ fate will be decided.

Meanwhile, the state’s only sure-bet senator, Amy Klobuchar — no stranger to electoral squeakers — said she prefers a seat-’em-first, sue-’em-later approach to the contested post. The recount now comes down to the 1,346 absentee ballots that the state’s 87 counties didn’t tally but now say they should have. By order of the state Supreme Court, the counties will submit uncounted, unopened absentee ballots by Friday (that’s a time extension) to the State Canvassing Board, which will incorporate them into the overall vote count before it certifies the election.

Not all 1,346 are likely to make it into the certified tally. First, the campaigns of Al Franken and U.S. Sen. Norm Coleman will review the uncounted ballot envelopes this week at 12 regional meetings around the state and knock out any they find unworthy of counting.

Franken’s folks sent the Coleman camp a letter over the weekend that proposed the two sides skip that step and essentially approve the inclusion of all the counties’ uncounted absentee ballots by acclamation. The Coleman campaign said no, that’s not what the Supreme Court asked us to do.

After a weekend of reviewing the uncounted ballots, Franken wants to count all 1,346 and Coleman wants to count only 136 — about a tenth of the total. The Supreme Court’s order includes a threat of unnamed sanctions for unreasonable objections but it isn’t clear what effect that will have this week.

Franken’s determination to count all the wrongly rejected absentee ballots rests on two ideas, one philosophical, the other political. Counting all valid votes has been the Franken battle cry from the beginning, so even with a lead in hand the campaign has continued to call for including any such ballots in the state’s tally. And with Coleman now almost 50 votes down, any reasonably random pool of ballots (like those wrongly rejected absentee ballots) is statistically unlikely to provide him with enough extra votes to make up the margin.

Meanwhile, U.S. Sen. Klobuchar told the Star Tribune the Senate should seat the man who has more votes after the State Canvassing Board certifies the election — and that man seems likely to be Franken. If Franken does assume his first elective office after a close election, he’d have that in common with Klobuchar. She narrowly won her first race 10 years ago, for Hennepin County Attorney, by a margin of 3,740 votes, avoiding an automatic recount by only three-tenths of a percent, or 1,525 votes.

As with the two- and three-digit leads that Coleman has held over the course of weeks of recalculating and recounting since Election Day, Franken’s lead is merely a snapshot, a momentary margin in a still-changing running total. The margin will likely grow from single to triple digits during the course of the day, as the board rejects ballots the Coleman campaign had challenged, and returns many votes to the Franken column.

It’s a watershed moment, a turn of the tide but one that could turn back again. After the State Canvassing Board completes its review of challenged ballots, challenges that the campaigns withdrew will be returned to the vote count and likely benefit Coleman. Then there are the estimated 1,600 wrongly rejected (and, so far, uncounted) absentee ballots statewide that the Minnesota Supreme Court yesterday ordered to be added to the tally — as long as the campaigns and state and local officials consent.

UPDATE: The Norm Coleman camp says they’ll trim their ballot challenges to “somewhere south of 1,000.” 

With two unanimous votes going its way at the board’s Friday meeting but rival U.S. Sen. Norm Coleman petitioning the state Supreme Court for delay, the Franken campaign is eager to please the board and help things proceed according to plan. One hitch: Tit-for-tat mass withdrawals to bring the challenged-ballot count down from a combined high of 6,655 to a manageable number may be welcome and all, but even processing the withdrawals means extra work for dog-tired election officials.

Cindy Reichert

The Minnesota State Canvassing Board met Friday morning to discuss what to do about wrongly rejected absentee ballots and 133 missing Minneapolis ballots in the statewide Senate election recount. Here’s a liveblog of what happened.

9:35 a.m.: The players are: From the Minnesota Supreme Court, Chief Justice Eric Magnuson, Associate Supreme Court Justice G. Barry Anderson; from the Ramsey County District Court, Judges Kathleen Gearin and Edward Cleary; and Secretary of State Mark Ritchie.

Ritchie wants to waive attorney-client privilege regarding an opinion from the state attorney general’s office. Passes unanimously and copies will be distributed in the room.

(By the way, I’m typing this based on the live feed from The UpTake. My colleague Paul Demko is on site and will be twittering at MnIndyLIVE.)

The campaigns have made more than 2,000 withdrawals from the total of 6,655 challenged ballots, leaving 4,472 challenged ballots. Sighs all around. Gearin talks tough on the seriousness of the matter; These better be real challenges, she says. Magnuson mentions people in the hall with signs reading “Count my vote.”

9:45 a.m.: Ritchie outlines a proposed process for handling the ballots for the board’s recounting starting next Wednesday.  He urges campaigns to get down the numbers of challenged ballots “to what’s appropriate.” He’s going to introduce Cindy Reichert, director of elections in Minneapolis.

Reichert: “Prior to Dec. 3″ her staff noticed unusual numbering on the envelopes from Precinct 1, Ward 3. On Dec. 2, they noticed that they didn’t have all the envelopes. Tape from the counting machines showed arithmetic errors (not unusual) so they continued to double-check. Reichert returned to her office from the elections department warehouse to consult the voter registration cards.

10:05 a.m.: Magnuson: The election return is prima facie evidence of what occurred at the polling place. The officials here have acted in the best interest of the public in their search. We have no authority and no reason to direct the City of Minneapolis to report anything to us other than what they have.

The case they’re citing is called “Moon” — I don’t think they’re really talking about consulting the lunar charts to decide the election.

Ritchie‘s motion is to accept the Minneapolis machine totals. Passes unanimously. The 133 votes will count.

Mark Ritchie

10:10 a.m.: Ritchie introduces staff report from deputy secretary of state Jim Gelbmann on the sorting at locations around the state of rejected absentee ballots into five piles: four for the legal reasons for rejecting and one for no good reason. Of those locations, 49 have completed their work, three have completed, but no report yet. And 23 will start sorting today. So far, there have been 4,823 rejected absentee ballots looked at by local election officials. Of those, 638 of those have been determined to be wrongfully rejected by the local officials or a trained election judge. Average of 13.2 percent of all rejected absentee ballots.

10:15 a.m.: Attorney General Lori Swanson testifying now. She says this canvassing board can request that the county election boards reconvene to correct the count. Cites Andersen case (from 1962?) in which selected counties’ reports were allowed to be inserted into the state count. Nothing prevents the board from making the request. Gearin: I hear you say we can take two actions. First we recommend that the counties count the wrongfully rejected absentee ballots. Second, we could accept their corrections. Some have already done it, so we have to do something about those no matter what.

10:15 a.m.: Swanson: You have the authority to recommend to the county canvassing board. Gearin: It’ll be part of an election contest. More questions. Magnuson asks Gelbmann which counties have submitted amended returns already. Answer: Itasca only. Some others have refused or not responded to Secretary of State’s request that they sort rejected absentee ballots.

10:25 a.m.: Magnuson: Do we have authority to make county boards do anything? Swanson: We haven’t found anything that would allow you to do that. Cleary: No reason why the Fifth Pile ballots shouldn’t be submitted. They are uncounted ballots, as determined by election officials. In my opinion they should come to us, they should be opened, and they should be counted.

10:30 a.m.: Magnuson: Agrees wholeheartedly with Cleary. The idea is to count ballots that were properly cast. I would be very surprised if county officials refused to send us amended returns. There are statutory remedies for voters who feel wronged; district courts have power to compel votes to be counted. Until we get an amended return, I don’t believe we can take any action. Gearin: We do not have authority to order county canvassing board to do this. I don’t know why they wouldn’t though. Part of it is, they’ve had a lot of burdens already.

10:35 a.m.: Anderson: I suspect in Pile Five there will be obvious examples of votes that the canvassing board should consider. I’m not troubled by this board recommending that counties look into it. But there are some questions about whether people are duly registered. Those are not facts’ those are allegations. This is not the place to do that fact finding. It’s not only a function of every ballot counting, it’s every lawful ballot. Ritchie: I move we recommend to counties that the county canvassing board review to identify obvious errors and report for review. Cleary: Restating motion. County canvassing board reconvene and separate rejected absentee ballots into five categories. The first four according to legal grounds for rejection. The fifth pile for ballots rejected without reason. Staff asks to include overseas ballots in motion, which is amended.

10:40 a.m.: Magnuson: I’m uncomfortable with us as board whose job is to review even recommending that election officials take certain actions. I’m uncomfortable directing them to do anything. I’m going to vote for the motion but we have no authority to force them to do this. And there is a statutory remedy. Ritchie: I share the general sentiment. It is just a recommendation. Anderson: Debating whether it’s “suggested” or “recommended” is not a useful way to spend a couple hours.

They’re checking over the wording. You would have to be totatlly isolated from any media to not know that the citizens of this state are very frustrated with how long this is taking. I urge both sides to make sure you’re respecting every citizen who went to the trouble to vote, with your challenges. Magnuson: We should call them allegedly wrongfully rejected absentee ballots.

Passes unanimously.

10:45 a.m.: Part two is that board would accept them. Magnuson: It would be premature to act on this until we get them. Cleary: I disagree. Counties are already well underway with their sorting and corrections. Asks Swanson, is it premature? Swanson: What’s important is to make request to counties. Cleary: I would like them to know that we should accept them. Ritchie: County officials wanted to hear from us first. We’ve stated pretty strongly we want the sorting done. Anderson: My view, and it may be excessive caution, I don’t like making a decision I don’t have to make. We’ve made our recommendation, let’s see what transpires.

10:50 a.m.: Magnuson: We have to wait and get the reports. And then we can accept them. Gearin: I can’t think of a reason why we would not accept the amended report regarding these absentee ballots. Ritchie: The longer we talk about this the farther it takes us from a clear message to the counties. Maybe we should change the wording to the motion already passed, adding a few words about sending the results back to the State Canvassing Board.

10:55 a.m.: Magnuson: We’re not in the business of telling them what to do. I think we’re micromanaging at this point. Ritchie: I feel comfortable that we have made a strong recommendation. We look forward to hearing from counties as soon as possible. We are planning to review challenged ballots from the 16th to the 19th. “I’m not happy about this.” — in reference to campaigns dragging their feet at withdrawing challenged ballots.

11:00 a.m.:  Anderson: I don’t think we should assume that there’s just one fifth pile. There may be problems. It’s also possible that we may just approve all of them. Cleary: My concern is that as these amended canvassing reports come in, we’re going to be engaged in a recount. Are we going to stop the recount to debate whether to accept the amended reports? Gearin: Do you really think we’re going to be done by the 19th. Cleary: Meritorious challenges are going to get swamped in a sea of frivolous challenges. Don’t make us tell you when they’re frivolous.

Adjourned.

I don’t hear huge debate that this State Canvassing Board wants to take up the question of rejected absentee ballots. At the moment it’s a non-issue. I’m really curious about how people think — let’s say it’s a thousand, let’s say it’s 500 — improperly rejected absentee ballots should get handled. Is it the view of the State Canvassing Board that they should all go to court? And which court could handle that number? Is there another option that is more cost-effective for the citizens and less stressful for the state judicial system?

At a press conference after the meeting (video), Ritchie told reporters that without some action to address the problem, there currently exists only one option for voters who believe their votes were improperly rejected. “At the moment, they have to go to court,” he said. “We can discuss whether that’s a good thing or not.”

I asked the secretary of state what he thought of allowing the responsibility for resolving the problem of wrongly rejected absentee ballots fall to individual voters. ”If there’s a thousand people having to go to court?” Ritchie let his voice drop to a stage whisper. “It’s a bad thing. … If there are 500 to 1,000 [cases], that would be crushing to the judicial system.”

Video of the canvassing board meeting after the jump.

Minnesota State Canvassing Board meeting, Nov. 26, 2008 (via The Uptake)