POLITICAL NOTEBOOK: Can Emmer win? Numbers may not add up

ST. PAUL -- Tom Emmer's legal team is looking for every way to find votes for him in the Minnesota governor's race, but the main argument presented so far does not add up, a law professor and legal expert says.

David Schultz of Hamline University said that the Emmer strategy to randomly remove ballots because more people voted than signed in on election day would require 87,700 ballots to be removed to help the Republican's campaign -- and removing ballots would be unconstitutional.

Schultz went through a lengthy mathematical computation leading to his conclusion, but in the end it was another argument that may carry more weight.

The state Supreme Court and State Canvassing Board rejected Emmer's request that elections officials to follow a state law that requires precinct election judges to count the number of voter signatures at the end of election day and compare it to the number of votes cast. If more votes were cast than there were voters, state law requires ballots to be randomly removed from the count until the vote and voter numbers are equal.

Schultz says that violates the U.S. Constitution.

"If voting is a fundamental right protected by the 1st and 14th amendments (and that is true), subjecting voters to random denial of having their ballot counted because of election official counting errors or mis- or maladministration is clearly a denial of a right to vote," Schultz wrote in his blog. "I think the current state law is unconstitutional."

Emmer's attorney, former Chief Justice Eric Magnuson, was asked in Tuesday's State Canvassing Board meeting if Emmer could overcome Democrat Mark Dayton's 8,770-vote lead. Magnuson did not directly answer it.

Since the practice is not to count actual signatures, Magnuson said that voter numbers may be inaccurate. "To do it by an approximate method is wrong."

Some observers say that part of Emmer's legal strategy is laying the groundwork for an eventual court case challenging the election. Saying that election officials broke state law is one such move.

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