Minnesota Supreme Court Settles Reconciliation Issue

Edward B. Foley

- Moritz College of Law
Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law; Director, Election Law @ Moritz
Posted on December 7, 2010, 7:21 pm

In a unanimous, thorough, and well-reasoned opinion, the Minnesota Supreme Court rules that voter receipts, and not just poll book signatures, may be used for purposes of reconciliation.  This ruling has the effect of eliminating the basis on which Republican Tom Emmer had attempted to challenge reconciliation practices in this year’s election.  Unless Emmer has some other grounds for contesting the election that is not publicly apparent, it would seem that his Democratic opponent Mark Dayton’s victory is a foregone conclusion.  

Still, buried in footnote 4 of the court’s opinion is an unsettled legal issue of potential interest in future elections.  There the court noted that, even though the use of voter receipts is proper, the remains the question of what happens if the number of voter receipts does not match up with the number of ballots cast.  As I noted in a previous post, and as the court itself quoted, the relevant statute calls for the local election officials to randomly withdraw a number of ballots equal to the excess number of ballots cast.  But apparently this statutory requirement is not uniformly followed among election officials in Minnesota.  The court stated:  “In responses filed to the petition, certain local election officials appear to have conceded that they are not removing excess ballots, although they do not concede a statutory violation.”  The court went on to say that it did not need to address the propriety of this local practice, because Emmer’s complaint had focused specifically on the issue of receipts.

It seems beyond the realm of possibility that any failure to follow the statutory requirement of random withdrawal could affect the outcome of this year’s gubernatorial election in Minnesota.  But, as the state supreme court itself has now warned, this issue is there potentially lurking for future elections.  If Minnesota again had an election as close as its 2008 U.S. Senate election, where the margin was just 200 or 300 votes, I presume the state would not want to be in a position where it faced ferocious litigation over the apparent noncompliance with this statutory requirement by election officials in some localities but not others.   That would be a headache that might cause Minnesota to relive the kind of fight that it faced in 2008.  For this reason, it behooves election administrators in Minnesota to ask themselves whether they can take steps to coordinate their local practices with the state’s statutory requirements, so as to avoid this potential situation.

UPDATE (Dec. 8): The Republican candidate for governor, Tom Emmer, has now conceded.  This concession, coming well in advance of the January 3 inauguration date for the state's new governor, shows that Minnesota was able to bring this disputed election to a successful conclusion.  There was perhaps more saber-rattling this year than the roughly 9000-vote margin of victory would seem to have warranted.  Speculation was that ardent Republicans wanted to use a dispute over the outcome to delay the inauguration of Democrat Mark Dayton, to keep Republican incumbent Tim Pawlenty in office as a holdover for as long as possible.  But in his concession speech, Emmer dismissed use of election litigation for purposes of delay as inapproriate.  Having dodged that possibility this year, Minnesota now can take a collective deep breath and more leisurely consider what risk it may face in the future of such delay tactics and other potential vulnerabilities, including the one identified earlier in this post about the random withdrawal procedure.  Having suffered through an eight-month disputed U.S. Senate election in 2008, many observers in Minnesota wanted to avoid a dispute this time that went into January.   The state accomplished this objective today, but it can still ask itself whether it has the right set of procedures and institutions in place to achieve the same objective if a future gubernatorial election has an apparent margin of victory in the hundreds rather than in the thousands.


Edward B. Foley directs the Election Law at Moritz program. He is author of Ballot Battles: The History of Disputed Elections in the United States and the forthcoming Presidential Elections and Majority Rule. View Complete Profile

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