Republican gubernatorial candidate Tom Emmer withdrew 2,580 ballot challenges over the weekend after the State Canvassing Board gave the go-ahead for the campaigns to evaluate those frivolous ballots. In the end, the Emmer team narrowed the number of frivolous challenges that it will send to the board to just 24. Meanwhile, as the recount process draws to a close, CNN has become the first media outlet to call the race for DFLer Mark Dayton.

“The fact that we withdrew a large number of challenges doesn’t mean that we necessarily agree that these were frivolous challenges,” Emmer’s attorney Eric Magnuson told reporters on Saturday. “They’re simply challenges that we didn’t think would prevail in front of the canvassing board.”

He said, “What we are trying to do is make sure that the count is accurate. Once we figure out exactly what the ballot count is, then [Rep. Emmer] will be able to make some choices as to where it goes from there.”

On the Dayton side, attorney Charlie Nauen told reporters at a Saturday press conference, “We found out what we really knew going in: That virtually all of these challenges are indeed frivolous.”

He said the number of ballots selected by Emmer’s team to go forward — 24 — represented “less than one percent of the ballots that had been challenged over the last five days.”

“There were many opportunities for the Emmer team to do what they did today,” he said. “In other words, look at the ballots and make the decision that these were frivolous.”

He added that Dayton has a 9,000-vote lead over Emmer. “The recount is over. There’s no doubt that come the 14th that lead will be a substantial lead. The numbers speak for themselves.”

CNN seemed to agree with Nauen. On Saturday, it called the race for Dayton. Emmer has not conceded the race, and will likely not do so until the vote tally is certified by the State Canvassing Board on Dec. 14.

In his first media appearance since election night, Republican candidate for governor Tom Emmer met with reporters at the Minnesota state capitol Tuesday to address the recount. He declined to weigh in on the state GOP’s allegations of incompetence and fraud, but he did frequently allude to reported irregularities in Hennepin County on election night.

“The Minnesota voters have spoken — we just don’t know what they’ve said yet,” Emmer said. “There’s a process in place that is moving forward. We should know shortly what the outcome is, at least we are hopeful for that.”

“I’m just going to let the process go as it is supposed to by law.”

He said that so far the canvassing process has resulted in some gains for Emmer.

“Since 10 a.m. last Wednesday, we have gained over a thousand votes, and there are some questions that remain with respect to absentee ballots, with respect to military ballots, with respect some incredible mistake that was supposedly corrected in Hennepin County,” he said. “I think these things need to be addressed.”

He added, “Clearly there was something going on that nobody really understands right now.”

But that incident has been pretty well explained by Hennepin County. When updated numbers came in from county precincts at 10 p.m. on election night, a Hennepin County election worker accidentally added those numbers to the total unofficial count instead of taking the old numbers out and replacing them with the new numbers.

But despite that — and the fact that the election night results were not official — state party chair Tony Sutton has been trying to cast doubt about the integrity of the entire election.

But when pressed directly on whether Emmer thought there was incompetence or fraud, he said, “I think we will let the process work itself out.”

At the press conference, Emmer said it is possible for him to make up the difference in votes. “You’ve got a 0.4 percent separation, just a few thousand votes.”

He said he would abide by the outcome of the process.

Other moments from the conference:

On the hiring of former Minnesota Supreme Court Justice Eric Magnuson, Emmer said, “I think he’s one of the most respected, if not the most respected, legal jurist in Minnesota.”

On his leaving the country to Canada and absence from the press over the last week, he said, “I got about as far away from here as I could for a few days. Forgive me if after 16 months, if I took the better part of Friday, Saturday and Sunday… I took time to spend with my boys. I’ve been trying to honor some family time as well.”

Asked if he would file a legal challenge if the recount didn’t go his way, he said. “I think that’s premature. Minnesotans need to have confidence that the legal process that is in place is followed.”

The Republican Party of Minnesota is promising an “aggressive approach” to the recount between Republican Tom Emmer and DFLer Mark Dayton in the race for governor. On Tuesday, the GOP announced it has hired former Minnesota Supreme Court Chief Justice Eric Magnuson for the recount process. Magnuson sat on the State Canvassing Board during the Franken-Coleman recount. The local party is also collecting information from GOP activists on “irregularities,” while at least one national Republican has started a misinformation campaign directed at Secretary of State Mark Ritchie.

In a series of emails to activists, the Minnesota GOP asked for reports of irregularities at polling places.

“We need your help. Did you notice any irregularities in your precinct on election day?” said an email. The things the party is looking for include: “Military ballot difficulties, Absentee ballot voting difficulties (either in application or voting process), Same day registrations / busses arriving at polling places, Excessive vouching, Machine malfunctions / jams, Unsecured ballots, Persons with more than one ballot, Unauthorized persons ‘assisting’ voters in filling out ballots, Failure of election officials to properly establish voter registration (including improper identification, failure to check residency status, etc.), Campaigning in the polling place, Unauthorized persons in the polling place, Voter intimidation inside/outside of polling place.”

Another email asked: “Was your absentee ballot counted? If you are a Republican activist and voted absentee, we want to ensure that your ballot was counted.” The party asked activists to check on the Secretary of State website to see if their votes were counted.

The party has set up a recount hotline for GOP activists and voters.

The GOP is also looking for volunteers to monitor the recount.

“Under the leadership of State Chair Tony Sutton, we are taking an aggressive approach to this recount. We are currently seeking individuals (attorneys and non-attorneys) to participate in this recount effort,” said an email to party activists.

“These individuals will be responsible for monitoring the counting of ballots at each location and various duties as needed. The actual counting will be done by the county auditor and each campaign has the opportunity to have an individual(s) observe to ensure the integrity of the process. We are looking for both Minnesota residents and non-residents.”

On Tuesday, the party announced a major ‘get’ in their recount arsenal: former Minnesota Supreme Court Justice Eric Magnuson. Magnuson was one of the impartial judges that comprised the State Canvasing Board charged with handling the recount process.

Magnuson announced his retirement earlier this year and may now eschew his former impartiality and join the litigation team for Emmer and the GOP.

While the local party engages on its “aggressive approach,” national Republican groups are working to cast doubt over the election results.

Michael Thielen, executive director of the Republican National Lawyers Association (RNLA), penned an article in The Hill on Monday claiming that felon voters tipped the 2008 election to Sen. Al Franken and that Ritchie will somehow use his influence to tip the recount toward Dayton.

“Time and again, while Ritchie has packaged his actions under a façade of Minnesota nice, they are those of a fierce partisan who uses his official position to manipulate the process in favor of candidates from his own party,” wrote Thielen. “[T]here were more illegal felon votes than the margin of victory [for Franken], which is true when you look at just two counties, for example, Hennepin and Ramsey County where there are a total of 341.”

In fact, fewer than 80 people have been charged with voting while on probation in Hennepin and Ramsey counties and even fewer have been convicted. The 341 figure comes from unverified numbers being distributed by Minnesota Majority, a conservative group founded in part by former Republican Secretary of State Mary Kiffmeyer.

Al Franken (Photo: Aaron Landry)

**UPDATED**
Minnesota’s interminable U.S. Senate race is finally over. Nearly eight months after election day, the Minnesota Supreme Court ruled today that Democrat Al Franken prevailed by 312 votes over Republican Norm Coleman. The ruling prompted Coleman to finally concede the contest. Gov. Tim Pawlenty announced shortly thereafter that he will sign an election certificate for Franken today.

“Al Franken received the highest number of votes legally cast and is entitled … to receive the certificate of election as United States Senator from the State of Minnesota,” the court concluded.

In plain language, the five-member court meticulously shot down Coleman’s arguments as to why a three-judge panel erred in determining that Franken won the contest. In particular, it found fault with the former senator’s claim that local election officials violated the U.S. Constitution’s Equal Protection Clause by utilizing different standards in determining which absentee ballots should be rejected.

“Coleman neither claims nor produced any evidence that the differing treatment of absentee ballots among jurisdictions during the election was the result of intentional or purposeful discrimination against individuals or classes,” the court noted. “Nor does Coleman claim that the trial court’s February 13 order, establishing certain categories of ballots as not legally cast, was the product of an intent to discriminate against any individual or class.”

The court also rejected Coleman’s contention that he was egregiously harmed by the trial court’s unwillingness to examine some evidence of mishandled ballots.

“We conclude that the trial court ruled correctly that Minnesota law provides no remedy for wrongly accepted absentee ballot return envelopes once those envelopes have been opened and the ballots inside deposited in the ballot box,” the opinion stated.

Shortly after the ruling was released, Coleman called a press conference at his St. Paul home and announced that he had phoned Franken to congratulate him on his victory. “Further litigation damages the unity of our state,” he said.

Coleman’s case from board to panel to Supreme Court

The extraordinarily close election — with roughly 2.4 million ballots cast, and a margin of difference of less than 0.1 percent — dragged on for more than seven months as various election officials and judges sought to determine the accurate winner of the contest. Norm Coleman initially emerged with a precarious 725-vote lead. But even before a mandatory statewide recount began, the Republican’s lead began to wither. The reason? Mistakes made by local officials on election night. For instance, Franken gained 100 votes in Partridge Township when election officials there determined that they’d mistakenly entered the Democrat’s vote tally as 24 on election night instead of 124.

By the time local election officials and campaign volunteers began the tedious, state-mandated process of re-counting every single ballot by hand, Coleman’s lead had shrunk to just 215 votes. That margin continued to dwindle throughout the month-long process, which was overseen by a four-judge panel appointed by Minnesota Secretary of State Mark Ritchie. Finally on Jan. 5, the Statewide Canvassing Board unanimously ruled that Franken had won the contest by 225 votes.

But this would prove to be merely another phase in the contest. Coleman appealed to the state courts, as is his right under Minnesota’s election laws. His primary argument: local election officials used wildly varying standards in determining which absentee ballots were included in the vote tally, a violation of the U.S. Constitution’s Equal Protection Clause.

A three-judge panel, picked by Chief Justice Eric Magnuson, spent seven weeks hearing the case. They reviewed 19,000 pages of legal pleadings, 1,717 individual exhibits and testimony from 142 witnesses before ratifying Franken’s victory. The margin: 312 votes.

Coleman then appealed to the Minnesota Supreme Court. From the outset, legal observers argued that Coleman faced grim odds in seeking to overturn the trial court’s decision.

Today’s ruling ratified that prevailing sentiment. In addition to rejecting Coleman’s arguments with regards to the Equal Protection Clause, the court shot down the Republican’s contention that some ballots were double-counted and that 132 missing Minneapolis ballots were wrongly included in the final vote tally.

“The ballots are missing, but Coleman introduced no evidence of foul play or misconduct, and the election day precinct returns are available to give effect to those votes,” the ruling notes. “We hold that the trial court did not err in ruling that the election day precinct returns for Minneapolis Ward 3, Precinct 1, were properly included in the tally of legally cast votes.”

Coleman faces an uncertain political future. Some have suggested he might be eyeing Pawlenty’s job — a post he unsuccessfully sought in 1998. But the nasty, multimillion-dollar 2008 campaign, followed by the never-ending election contest, has left both Franken and Coleman bruised.

The Supreme Court case was heard by justices Alan Page, Paul Anderson, Helen Meyer, Christopher Dietzen and Lorie Skjervern Gildea. Justices Eric Magnuson and G. Barry Anderson recused themselves from the case because they both served on the Statewide Canvassing Board that initially certified Franken the winner.

OpenSecrets.org found that Sotomayor hasn’t made a political donation since joining the federal bench in 1992, while others on Obama’s shortlist — especially those who aren’t judges — made lots of them.

Elena Kagan, for example, gave Obama’s 2008 presidential campaign the maximum allowed: $4,600. She was dean of Harvard Law School before Obama appointed her U.S. Solicitor General this year.

Diane Wood made $1,250 in political donations during the 1992 election cycle, the lion’s share going to Bill Clinton, who appointed her to the federal Court of Appeals in 1995. Wood’s current husband has given $5,000 in the past six years, almost half of that to Obama.

Records of political giving haunt several of Minnesota’s sitting high-court justices. Three of the five Minnesota Supreme Court justices who will hear oral arguments in Coleman v. Franken on Monday have made donations to current or past candidates for the seat that’s in dispute. All gave before they were named to the high court.

Two are from past election cycles: Justice Helen Meyer gave to the late Democratic U.S. Sen. Paul Wellstone’s 2002 re-election campaign, and Justice Lori Gildea donated to Coleman’s unsuccessful 1998 run for governor as a Republican.

Justice Christopher Dietzen gave $250 to the “Coleman for Senator 08” campaign committee in 2004,  11 months before Gov. Tim Pawlenty appointed him to the state Supreme Court.

None of the three has recused himself or herself from judging Coleman’s appeal of the election contest court ruling that showed Franken won the U.S. Senate race by 312 votes.

Chief Justice Eric Magnuson and Associate Justice G. Barry Anderson have not participated in any of the high court’s proceedings or deliberations related to the Senate election. They served on the State Canvassing Board late last year, which found that Franken had won the statewide hand recount of 2.9 million ballots cast.

Franken wants the state’s highest court to affirm the ruling by a three-judge panel that he won the U.S. Senate contest by 312 votes and order that he be issued an election certificate immediately.

“For over four months, the citizens of Minnesota have been represented by only one United States Senator, and the effects of this delay are increasingly significant,” the brief reads.

The issuance of the certificate is key because it would almost certainly allow Franken to take his post in Washington, D.C., while any appeals to the federal courts play out. Republican Gov. Tim Pawlenty has equivocated on whether he would sign an election certificate once the state-court process is completed. He told Minnesota Public Radio last month that he would scrutinize the Supreme Court’s ruling and the strength of Coleman’s case before making a decision.

Coleman’s appeal calls on the state’s highest court to remand the case back to the three-judge panel to deal with purported errors in its initial ruling. The former senator’s brief focuses primarily on varying standards utilized by local election officials in determining which absentee ballots would be counted. It argues that the disparate treatment of ballots is a violation of the Constitution’s equal protection clause. Coleman wants at least 1,359 rejected absentee ballots added to the tally. His appeal also argues that 132 ballots that were lost should not be counted and that some ballots were wrongly counted twice.

Franken’s brief concedes that some mistakes were made by local election officials in determining whether to reject an absentee ballot. “There is, however, no evidence that such errors were deliberate or intentional or that they determined the outcome of the 2008 senatorial election,” the brief reads.

The brief also emphasizes the thoroughness of the legal proceedings before the three-judge panel, noting that it heard from 142 witnesses, examined nearly 2,000 exhibits and considered roughly 20,000 pages of legal documents.

“It was their burden to show that Norm Coleman won a majority of the votes,” said Marc Elias, Franken’s lead recount attorney, on a conference call with reporters this afternoon. “He failed to meet that burden and I would say he failed to meet it by a wide margin.”

Elias expressed confidence that Franken will be seated once the state Supreme Court rules. He dismissed recent comments by Republican National Committee chairman Michael Steele expressing enthusiastic support for Coleman to continue the legal fight in federal courts. “I don’t follow closely what he has to say about the law in Minnesota,” Elias said of Steele.

Oral arguments before the state Supreme Court are slated for June 1. Only five judges will hear the case. Justices Eric Magnuson and G. Barry Anderson have recused themselves because they served on the State Canvassing Board that certified Franken the victor.

Norm Coleman. Photo: WDCpix

Norm Coleman filed his appeal of the U.S. Senate election contest with the Minnesota Supreme Court today, arguing that “widespread disparities” in which absentee ballots were accepted distorted the final vote tally.

“The deliberate and disparate treatment of large numbers of similarly situated voters — who had their votes counted only if they lived in certain jurisdictions — is unacceptable in any election,” the brief notes. “It is especially so in one so close.”

Earlier this month, following a seven-week trial, a three-judge panel determined that Al Franken won the election by 312 votes. Coleman immediately announced that he would appeal the ruling.

The crux of Coleman’s case is whether different standards were applied across the state in deciding which absentee ballots were counted in violation of the Constitution’s equal protection clause.

“Some counties, for example, assiduously researched whether a voter or his witness was registered; others never inquired,” the 62-page brief notes. “Some officials accepted ballots when they could not locate an application; others refused to do so. The result is that whether an absentee ballot was accepted depended on where the voter lived.”

While many legal observers praised the ruling of the three-judge panel that heard the election contest as thorough and well reasoned, Coleman argues that the trio erred in failing to consider evidence of disparate treatment of ballots.

“Had the court not excluded such evidence Coleman would have proven the disparities changed the outcome of the election,” the brief reads.

Coleman contends other errors were made by the panel as well. The appeal argues that the judges failed to order precinct inspections to determine if double-counting of ballots occurred and wrongly included 132 ballots from a Minneapolis precinct that were lost.

The brief, signed by attorney James Langdon, concludes that the case should be remanded back to the trial court to remedy these errors. Specifically, Coleman wants at least 1,359 absentee ballots added to the final tally.

Franken’s reply brief is due May 11, and oral arguments are slated for June 1 before the five justices. Two of the Supreme Court’s justices — Eric Magnuson and G. Barry Anderson — have recused themselves from the current case because they served on the State Canvassing Board that oversaw the recount.

The order (pdf) is a relatively minor move that allows out-of-state lawyers Marc Elias and Kevin Hamilton to represent Franken before the state’s high court. But as TPM notes, the signature page indicates the same lineup as in the court’s past actions in the matter.

The signatures from the remaining five justices on today’s order indicate that even those who donated to related political funds —  such as Associate Justice Christopher Dietzen, who gave money to Coleman’s 2008 campaign in 2006 — will continue to participate in deliberations on the Coleman-Franken dispute.

None of the justices’ donations in question were made after they joined the bench.

It’s not yet clear whether the justices might call in reserves to help with the heavy lifting, should they agree to hear Coleman’s appeal. Past practice dictates that the court sometimes replaces missing members with fill-ins from the ranks of retirees from the bench.

Because of this conflict, Magnuson (pictured) and Anderson have removed themselves from previous hearings before the state’s top court. John Kostouros, Communications Director for the state’s Court Information Office, confirms that they are expected to withdraw from any hearings going forward.

“They’ve indicated from the beginning that they would recuse themselves from any further activity in this one because they served on the panel,” Kostouros says. “They’ve made it clear to me that they intend to stay out of this.”

The absence of Magnuson and Anderson from any appeal deliberations is potentially another blow to Norm Coleman’s (already slim) prospects at prevailing in the state courts. Both justices were appointed by Republican governors.

Following the addition of 351 ballots to the vote tally yesterday, Franken’s lead has grown to 312 votes. The three-judge panel hearing the Senate contest is expected to issue a ruling shortly. Coleman has vowed to appeal the matter to the state Supreme Court.

Attorneys for Norm Coleman and the State of Minnesota countered that state law explicitly provides for an election contest such as is currently underway and that there’s no justification for certifying a winner until that process is completed.

“Minnesota has made a determination that when it comes to the question of who has won it’s important to take the time to get it right,” said James Langdon, representing the Coleman campaign.

“There are legitimate, serious issues to be determined by the contest court and it is in the business of doing so right now.”

The justices seemed skeptical of the Franken campaign’s arguments. They questioned both sides vigorously,  however, often interrupting their arguments.

Justice Christopher Dietzen noted at one point that both campaigns have flip-flopped on which votes should be included in the final tally. “I don’t think the hands are clean or pure on either side of that,” he said.

Elias brought up the ongoing debate over the federal stimulus package to make a case that Minnesota needs to have two senators representing its interests in Washington.

“The perfect cannot be the enemy of the good,” he said. “The nation’s business is going on as we speak. … For want of a vote a stimulus package may be lost.”

The Supreme Court was reduced to just four members for the hearing. Justices Eric Magnuson and G. Barry Anderson have recused themselves from cases involving the U.S. Senate race because they served on the state Canvassing Board, which oversaw the manual recount and certified Franken the winner by 225 votes. Justice Helen Meyer was not present for oral arguments but will participate in the case. There was no indication when the court might rule on the matter.

Related: Unless Franken gets temporary certificate, Senate seat could stay empty 5 months