Eric Kleefeld December 3, 2010, 6:24 PM

The Minnesota State Canvassing Board just had a contentious two-hour meeting, in their effort to oversee the state gubernatorial recount, in which they tangled with Republican nominee Tom Emmer’s lead litigator Eric Magnuson — a former state Chief Justice who served on the board itself during the 2008 Senate recount. And in a display that would make Oscar Wilde proud, the board spent its meeting at lengthy discourse on the subject of frivolity.

At issue were the very large number of challenges that Emmer campaign observers have made against the local officials’ decisions on how to count ballots — of which the vast majority, over 2,500 of them, have been deemed frivolous by the local officials and counted anyway, under the board’s rules.

After much back and forth, the board came to realize that they had to dot every “i” and cross every “t,” and laid out a new procedure for the next week — copies of all challenges deemed frivolous will be provided to the Emmer campaign, with Magnuson promising to seriously cut down the list by the middle of next week, and the board to see the list on Friday. But, Magnuson said, there would still be ballots that they think should get a look.

(As Justice David Stras made clear, the board is not promising to actually look at all such ballots — just that Team Emmer must have access to them and the chance to review the list.)

Magnuson responded to one egregious case: “Mr. Secretary (Democratic Secretary of State Mark Ritchie, the board’s chairman), members of the board, I want you first to understand, we’ve never seen these ballots before. And based on what I saw, I’d withdraw every single one of those.”

In this case, an Emmer campaign observer in just one small area, Renville County, had made over 400 challenges of ballots that had write-ins on other races — particularly a school district race — which the observer tried to argue constituted the voter signing their ballot. In fact, the write-ins were made in the proper area — and the election itself was in a district where only one person had filed for the ballot in a race for three vacancies, thus necessitating write-in campaigns to fill all the offices.

Ritchie, who has shown a clear desire to not repeat the thousands of frivolous challenges from the 2008 Senate recount that he had presided over, had thanked the local officials for declaring those challenges frivolous and counting the votes.

Ramsey County Judge Gregg Johnson observed the number of challenged ballots, frivolous and legitimate, were still less than Dayton’s margin. So, he asked Magnuson, what is the interest in addressing them?

“Even if the number is less than the vote difference,” said Magnuson, “your job with all due respect is to count the votes in front of you in the election. Once those are done, it will inform the decision of candidate Emmer, whether to file an election contest, and what issues to raise.”

Going into the recount, Democratic nominee Mark Dayton led by 8,770 votes, or 0.42%. While this is within the 0.5% needed to trigger a statewide recount, many observers have doubted that Emmer could pull ahead, as Dayton’s lead is probably too wide to be reversed barring any surprising discoveries in the hand count. However, a possible drawn-out legal contest could potentially result in Republican Gov. Tim Pawlenty staying in office in the interim, with the opportunity to work with a newly elected Republican legislature.

In the 2008 recount, the Coleman and Franken campaigns made thousands of challenges, most of them frivolous, temporarily taking those ballots out of the count in an ever-escalating battle over the expectations game that played with the apparent public numbers. This resulted in Coleman seemingly keeping his lead of about 200 votes headed into the Canvassing Board meeting, even though the underlying reality was that Al Franken was pulling ahead. (After the challenges were adjudicated, and before rejected absentee ballots were reconsidered, Franken led by just under 50 votes.)

The state legislature then passed new law forbidding frivolous challenges — but when the actual recount was set to begin this year, the board had a serious conundrum figuring out how to implement it. After all, devolving to the great number of local election officials through the state the new ability to disregard an attempted challenge, even blatantly frivolous ones, would open potential legal challenges on equal protection grounds if it were done without the opportunity to review any such decisions later on.

The board ultimately decided — with Magnuson stating his protest — that challenges deemed legitimate by the local officials will result in the ballots being taken out of the count, pending adjudication by the State Canvassing Board. Challenged ballots declared to be frivolous by the local officials will still be counted, though they are also documented and set aside for possible review later on.

Yesterday, the Dayton campaign took action to withdraw its challenges that were deemed frivolous — all 42 of them at the time, and they heavily criticized the large volume from Team Emmer, including a packet of 84 clearly frivolous examples. In response, Magnuson sent a letter to the board this morning, complaining that the process was broken.

In his letter, Magnuson presented a ballot that did appear to be an accurate challenge by the Emmer observer, but was declared frivolous by the local official. (One has to wonder if a certain boy-who-cried-wolf effect took place here, between that Emmer challenger and the counting official.)

Towards the end of the meeting, Anderson grilled Magnuson in a very unusual manner — after all, a state associate justice puts his former chief justice on the spot. Anderson reviewed the fact that on the previous canvassing board, Magnuson distinguished himself by keeping the notes of how the board dealt with determining voter intent on challenged ballots. Magnuson had called his noted the “hieroglyphics.” And Anderson put a copy up on the screen in the room.

“Is that your hieroglyphics from two years ago?” Anderson asked — with Magnuson spinning it as simply the record of what that board decided. As the conversation proceeded, Anderson asked: “And you do believe in precedent, do you not?”

After much back and forth about Magnuson’s belief in precedent, and what should qualify as precedent, Magnuson ultimately said that those notes could be used as “guidance” for the current board, “but I would hesitate to argue that you are bound in any way.”

(Special thanks to The UpTake, for hosting a video stream.)

2010 elections, MN-GOV, Mark Dayton, Tom Emmer