Minnesota recount continues amid challenges

Frustrated with numerous challenges on the first day of Minnesota's gubernatorial race recount, Hennepin County elections manager Rachel Smith came to work on Day Two prepared, with pre-printed labels.

On them? The words "frivolous" and "Emmer."

Her preparation for marking challenged ballots may have helped election workers surf the wave that hit Hennepin County on Tuesday, but it couldn't stop it. By the end of the day, the state's largest and one of its most liberal counties had a stack of nearly 1,000 ballots deemed to be frivolously challenged, enough to slow its progress in the recount.

"These are legitimately marked ballots," Smith said late in the day, holding up a stack of ballots clearly marked for Democrat Mark Dayton but challenged anyway. "There's nothing there."

With more than 70 percent of the recount finished, no trend has emerged to indicate a change in the outcome of the Nov. 2 vote. All but 10 of Minnesota's 87 counties have wrapped up their recounts, and Democrat Mark Dayton leads Tom Emmer by 8,733 votes, according to a comparison of pre- and post-recount totals posted on the secretary of state's website.

In Hennepin County, more than 600 challenges were lodged Tuesday -- more than twice as many as the previous day. Just 13 came from DFLer Mark Dayton's campaign. And 103 came from a lone precinct near the University of Minnesota.

The Republican Party of Minnesota, which is working with Emmer's campaign, said it has

instructed volunteers to leave no stone unturned as Emmer tries to close a nearly 9,000-vote gap with Dayton.

"Generally, what we've told people challenging the ballots is if there's any question or any concern, let the (state) canvassing board and the lawyers take a look," GOP spokesman Mark Drake said.

At table after table, election workers toiling in cramped quarters in the basement of the Hennepin County Government Center reviewed questionable challenges, labeling them one by one before slipping them into envelopes.

"What is the basis for this challenge?" an election worker asked an Emmer volunteer, looking over a ballot with a Dayton vote but showing white inside the oval.

"Under vote," the volunteer said, meaning the voter did not intend to vote for anyone.

"What is the basis for this challenge?" the worker would ask on another Dayton vote, the mark straying outside the oval.

"Identifying mark," the volunteer said, meaning the voter intended to label the ballot with their name or other identifying information.

Emmer's lawyers sent a letter to the state canvassing board Tuesday, asking to ensure it quick access to copies of challenges. Smith said she is having trouble doing that because of the large volume.

Of the 626 challenges deemed frivolous Tuesday, only three came from the Dayton campaign. Hennepin County, Minnesota's largest and the site of more than one in five of the 2.1 million votes cast Nov. 2, has finished counting 130,000 ballots, with 340,000 to go.

Dayton recount director Ken Martin said the campaign's internal numbers show Dayton's lead slightly larger, and that 95 percent of the frivolous challenges statewide are being lodged by the Emmer campaign. He said many, particularly in Hennepin County, are "absurd" and a waste of time.

The question that persisted all day was what Emmer hopes to gain by challenging so many votes, many of them clearly intended for Dayton. Smith said there were just 45 challenges over two days that the county said were valid.

Unlike the Senate recount in 2008, dubious challenges are not being withdrawn from the opposing campaign's totals. Those frivolous challenges are being set aside to await further instructions from the state canvassing board, which is overseeing the recount.

Hennepin County is solidly Democratic, but what's happening there contrasts with similar counties' experiences. In DFL-leaning St. Louis County, just 17 frivolous challenges were lodged in the first two days. In Ramsey County, another Democratic stronghold (though one where frivolous and valid challenges are not being distinguished), there were 122.

Looming over the recount proceedings is whether Emmer will haul the recount into court, a possibility that informed the state canvassing board's decision last week to monitor frivolous challenges despite a new state law disallowing them.

On Tuesday, state GOP chairman Tony Sutton strongly suggested Emmer had legal grounds to do just that, telling the Associated Press "there's definitely some issues that merit review."

Sutton mentioned matching the number of votes and voters and a procedure called vouching, where a registered voter can attest to the residency of an unregistered voter.

Known as a court contest, such a move would likely delay the planned Jan. 3 swearing-in of the next governor and allow Gov. Tim Pawlenty to stay in office beyond the normal expiration of his term. If that happens, new majorities in the Minnesota House and Senate would give Republicans the unchecked ability to pass legislation.

The vouching issue arose on Election Day in Minneapolis precinct 3-1, located in Dinkytown, where a student activist was allegedly vouching for large numbers of voters he or she did not personally know. Hennepin County Attorney Mike Freeman is reviewing the incident.

Notably, Emmer's Hennepin County volunteers lodged no challenges -- zero -- in precinct 3-1 on Tuesday, when it was recounted. A nearby precinct, 3-3, was the site where more than 100 ballots were challenged.

Smith said she asked the Emmer campaign to review those challenges with her but they declined. "In some ways, we'd like to have an explanation of why they're being challenged," she said, adding that her staff overheard the Emmer campaign asking volunteers for more challenges.

Smith's experience differed markedly from her counterpart in Ramsey County, Joe Mansky. The recount there went more smoothly, and at least part of the reason appears to be a unique approach by Mansky.

From the get-go, Mansky announced he wouldn't deem any challenges frivolous -- a move that pleased Emmer attorneys but could have been an invitation for would-be challengers to go wild.

But in Ramsey's 10-table recount room, Mansky asked that challenges be formally lodged by Emmer's on-site lawyers, rather than the volunteers who initially made the call.

In precinct after precinct, Emmer's lead attorney, former Federal Election Commission Chairman Michael Toner -- the campaign's Washington heavyweight -- found himself poring over challenges.

The result: Nearly half of Emmer's challenges are being withdrawn. According to a Pioneer Press tally of 15 randomly selected precincts Tuesday, Toner only followed through with 41 challenges out of 73 initially made by campaign volunteers. Yet Toner described his own posture Tuesday as "aggressive."

All but seven of those 41 remaining challenges appear highly unlikely to be sustained.

Mansky said he was pleased with the "relatively small number" of challenges: 122 in two days -- 104 by Emmer and 18 by Dayton -- with nearly 80,000 ballots recounted.

There were moments of levity.

The infamous Lizard People made a return, this time as a write-in vote in Ramsey County. It was not challenged by either campaign.

Perhaps a more entertaining or bizarre ballot surfaced. An Emmer voter wrote in the margin on his ballot: "THIS WHITE BOY DOES NOT WANT TO BE IN PRISON. I WANT TO BE COMMANDER IN CHIEF! LEGALIZE DRUGS & 2 GAIN CONTROL OF THE PANAMA CANAL."

Yes, it was in all caps. And a Dayton lawyer challenged it as an identifying mark.

Bill Salisbury contributed to this report.

Distributed by McClatchy-Tribune Information Services.