Election Law @ Moritz

Recent Opinion Articles

Edward B. Foley
Free & Fair is a collection of writings by Edward B. Foley, one of the nation's preeminent experts on election law.

Information and Analysis

Senate race in MN: the recount process

Print Page

November 5, 2008

Everybody is talking about the possibility of a recount and/or election contest occurring in the close Minnesota US Senate race between Norm Coleman (R) and Al Franken (D). Coleman and Franken are separated by approximately 500 votes as of 5:45 p.m. today. Here’s how the recount process would work.

Recount: An automatic recount would probably occur if the difference between the candidates’ totals was less than 0.5% of the total number of votes cast for the office. The most recent numbers show a difference of only 702 votes statewide, plenty close to trigger a recount (under the current numbers, anything less than 14,300 will result in a recount). While that number could change, it should not change much, because all in-person ballots should already have been counted and the number of absentee ballots that were cast and remain to be counted should be limited by Minnesota’s requirement that absentee voters have an “excuse.” However, even if the margin of victory falls outside the 0.5% cutoff, the “losing” candidate may still obtain a recount at their own expense by filing an appropriate petition with the Secretary of State. M.S. 204C.35. The deadline for filing the petition is generally within seven days after the canvass is completed. The deadline for completing the statewide canvass in Minnesota is about 17 days after the election. Candidates may waive automatic recounts if they so choose.

Election contests: An election contest must be filed within seven days after the canvass is completed (five days in the case of a primary). MSA 209.021. However, there are two exceptions. First, “if a contest is based upon a deliberate, serious, and material violation of the election laws which was discovered from the statements of receipts and disbursements required to be filed by the candidates and committees,” the complaint need not be filed until ten days after certification (five days for a primary). Second, where a recount petition is filed, the clock for filing an election contest does not begin to run until the results of the recount have been certified by the appropriate body. MSA 204C.35; 204C.36.

Election contests for US Senate are heard by a three-judge panel appointed by the Chief Justice of the state Supreme Court. M.S. 209.045. The current Chief Justice, Eric Magnuson, was appointed by the current Republican governor. There are no explicit constraints on the partisanship of the judges Magnuson appoints (the party affiliations of Minnesota judges are notoriously difficult to determine, anyway). If there is a difference of opinion between the three judges, the majority opinion prevails. There is no explicit deadline for a decision. The decision may be appealed directly to the state Supreme Court. M.S. 209.09, 209.10. The current composition of the state Supreme Court is unknown, although a majority of them have been appointed by Republican governors.

Note that Minnesota law explicitly says that the courts will not install the “winner” of a US Senate election contest into office. Rather, the court will only determine who obtained the most legal votes, and will then forward that information to the US Senate for them to make the decision as to whom they want to include into their ranks. M.S. 209.12.