Capitol View: November 22, 2010 Archive

Live Blog of MN Supreme Court hearing

Posted at 2:16 PM on November 22, 2010 by Tom Scheck
Filed under: Campaign 2010, Campaign 2010: Minnesota Governor, Recount 2010

The Minnesota Supreme Court is again weighing into a statewide election. Two years ago, the court was faced with a legal battle over the outcome of a U.S. Senate race. This year, the court is being asked to wade into a governor's race that has Democrat Mark Dayton with a 8,755 vote lead over Republican Tom Emmer. That lead is expected to grow by 8,770 after the Secretary of State's office submits the post election review results done by local elections officials.

Today, five members of the Minnesota Supreme Court will hear oral arguments on an Emmer motion asking the court to require local elections officials to ensure that the number of ballots cast on Election Day squares up with the numbers of signatures on voter rolls. Emmer's attorneys want to know that there aren't more ballots cast than voters. They say state law requires local elections officials to do the so-called "reconciliation" on Election Night. On KTLK-FM this morning, Emmer said local elections officials should not have advised elections judges to forego the counting on Election Night.

"They've decided not to do this reconciliation process which is this at the end of the night, if you had 100 people sign in to your voter roll and you had 125 ballots, you're supposed to have 100 ballots so you're supposed to randomly pull out 25 so you have 100 and 100 so everybody's vote counts."

Local elections officials in Hennepin, Ramsey and Anoka counties say there are instances where there have been more votes than voters. But they say it has more to do with human error than voter fraud. They say casting aside any ballots will wrongly disenfranchise voters.

Dayton's attorneys have said the Emmer motion has more to do with delaying the outcome of the election than ensure every vote is cast.

Five justices are scheduled to hear the motion; Chief Justice Lorie Gildea and Justices Alan Page, Chris Dietzen, Helen Meyer and G. Barry Anderson. Two of the justices have recused themselves because they will sit on the State Canvassing Board and may have to judge if any contested ballots in the recount.

I'll live blog today's hearing. I don't have the fancy software so you'll have to hit the refresh button.

Let the liveblog begin....

For those wondering, Gildea, G. Barry Anderson, Dietzen and Stras (recused) have been appointed to the bench by Governor Pawlenty.

Governor Ventura appointed Helen Meyer.

Governor Arne Carlson appointed Paul Anderson (recused).

Justice Alan Page was elected to his seat.

Diane Bratvold, with Briggs and Morgan, is expected to argue the case on behalf of Republican Tom Emmer. Attorneys Tony Trimble and Matt Haapojaa and former MN Supreme Court Justice Sam Hanson will also appear on the behalf of Emmer and the MNGOP.

Marc Elias (of 2008 recount fame), Charles Nauen and David Lillehaug are present on behalf of Dayton's team.

Solicitor General Alan Gilbert will appear on behalf of Secretary of State Mark Ritchie. Attorneys for Ramsey, Hennepin and Anoka Counties have also submitted briefs but I'm not sure if they'll address the court.

Arguments begin.

Diane Bratvold is addressing the court. Bratvold says the voter signatures, not voter receipts, should detail total number of ballots.

Alan Page question: As I understand the process used today mean "voter receipts" and "voter certificates" don't exist.

Justice Dietzen: Are you contendin that voter certificate and election register are terms that are clear on their face or not?

The Emmer campaign argues that the law requires them the letter of the law should be followed. Dayton campaign argues it's outdated and should rely on receipts..

Dietzen:
Isn't it true that if we go back to 1978 that election register is something that election judges did....

Dietzen is questioning whether voter signatures were required or not. Bratvold says she's not sure. She does say signatures should be counted. Dietzen says polling place roster can be substituted with register and receipts. "That seems plausible to me," Dietzen said.

Gildea questioning as to why the issue shouldn't be ambigious since law calls for a "signed voter certificate" instead of signed polling roster. Bratvold says law requires the count of signatures.

Justice Meyer: What if an elections worker counted voters by hashmarks instead of counting the voter signatures. Bratvold says it would be ad hoc.

Justice Page: What is the practical effect of what you're asking here. Shouldn't it add up.

Bratvold: We know that's not true. We know there are excess ballots that's why it's important that the number of votes cast should be the same as the number of voters.

G Barry Anderson: Aren't we really arguing over form over substance here: Doesn't it allow for the counting voter receipts?

Bratvold: We are not arguing over form over substance. We want to know that ballots and number of voters square up. It's vital for this court to determine that.

Meyer interrupts Bratvold that she's overstating that local elections officials aren't following law and following SOS rule.

Gildea: If we conclude that the rule is consistent with the statute, can you privail?

Bratvold: Are petition is premised on how voter's votes will be counted.

We're really deep in the legal weeds here.

Bratvold's time has expired.

Alan Gilbert is up.

Gilbert says Emmer can't have it both ways. G. Barry Anderson says there are circumstances where there are overages. Election officials say the voters are diminous.

That seems to me in direct violation of the statute," Anderson said. "Shouldn't that be a matter of concern."

Gilbert says throwing the votes aside would disenfranchise that voter. Anderson says by including them it would saturate the pool of votes for those who did vote.

Dietzen is also pursuing this issue. Alan Gilbert says the voter outcome would be diminous (spelling error - sorry)..

Justice Page: the rulemaking authority seems to focus on the devoloping registration system and not on counting votes after the election. Where does the authority come?

Gilbert: The rule was enacted because of a change in a statutory provision with a new election registration system.

Gildea: that doesn't change whether SOS has the authority to interpret the rule. How does this have to do with counting afterwards.

Gilbert: What happened with registration system is that people got a voter receipt so voter certificate never existed. They provided for alternatives.

Gilbert: This rule has been in place for thirty years. He argues the SOS rule should be interpreted as a law. Justice Page interrupts and say until it's challenged and invalidated in court.

Justice G. Barry Anderson: The voter guide provided for counting of the signatures on the roster. Gilbert replies that's true but also says SOS also sent out a rule to count voter receipts.

Gilbert time is up. Marc Elias speaking on behalf of Dayton team.

Press corps shivers when Elias introduces himself. After effect of '08.

Elias says it's much easier to count the votes this way. Says MN learned from its mistakes.

Elias says the time to challenge the voting process is before the election - not after the ballots have been opened.

Gildea: What are we to do with election guide which says "count the signatures on the roster."
Isn't that what petitioner wanted this.

Helen Meyer: Is it your position that counting the voting receipts is the same as counting signatures on the roster?

Elias: Yes.

Gildea: Is it your position law is ambigious or unambigous.

Elias: I believe it's out of date.

Dietzen: Can this court literally enforce it when election register doesn't exist?

Elias: that's why rulemaking and administrative authority exists.

Elias says the question overage. He says there are times when the two numbers won't match and it's bc the election officials know why it is. Disabled person may not be able to sign a register. Two ballots were back to back and voted on one side and the back of the other side.

Dietzen: It seems to me your policy arguments run headway into statute. Excess ballots should be removed. That didn't occur here.

Elias: The question is whether there is an excess. He said "if a discripency cannot be explained."

Elias done. Bratvold is back up with rebuttal. She says state law requires voter signatures.

Justice Page: Could you explain why that doesn't answer this question that the receipt is proof of the voter's right to vote. Bratvold: It is proof of the right to vote but it's not proof of the proper count.

Bratvold: the counting of votes means that votes not be diluted. The proper number of votes should square with roster.

Arguments over. Gildea says they'll issue an opinion.