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Published December 01, 2010, 07:18 PM

Not All Challenges Equal in MN Governor Recount

County officials conducting the recount in Minnesota governor's race lack a unified approach to deal with ballot challenges, a problem awaiting the state board that ultimately will certify Democrat Mark Dayton or Republican Tom Emmer as the election winner.

By: Associated Press,

ST. PAUL, Minn. (AP) — County officials conducting the recount in Minnesota governor's race lack a unified approach to deal with ballot challenges, a problem awaiting the state board that ultimately will certify Democrat Mark Dayton or Republican Tom Emmer as the election winner.

The inconsistencies revolve around whether to classify some attempted challenges as "frivolous" and to count those votes now. In some places, all challenged votes are being held out of candidate totals pending ballot reviews next week by the state canvassing board. In others, officials are overruling challenges they deem without merit and letting votes stand.

Observers for Emmer, who trailed Dayton by 8,770 votes entering the recount, are lodging most of the challenges, both ballots that are close calls and those challenges attracting the frivolous tag. Emmer would need every challenge to break his way — and then some — to overtake Dayton.

But disparate process could factor into a possible lawsuit that might follow the recount and could tie up an outcome for weeks or months.

The secretary of state had documented 740 challenges as of Tuesday, four-fifths of them from Emmer's side. But that doesn't include the thousands of challenges local officials have ruled out of order.

In Nicollet County, where fewer than 14,000 of the 2.1 million votes were cast last month, 38 ballots were challenged, including one both campaigns questioned. County auditor-treasurer Bridgette Kennedy said all but a few were in true doubt.

Kennedy gave the campaigns a chance to withdraw the weaker challenges, but they didn't back down.

"While some may have been a stretch, the benefit of the doubt was given," Kennedy said. All the challenges were forwarded to St. Paul for canvassing board review.

The process hasn't worked that way in most places, including heavily populated Hennepin County. There, elections manager Rachel Smith has deemed hundreds of Emmer challenges frivolous and counted the votes on the ballots, largely for Dayton.

Smith has complained that the swell of challenges has slowed the recount. She threatened Wednesday to extend counting into the night or over the weekend to finish by a Tuesday deadline, which drew a chilly response from Emmer's team. State Republican Party chairman Tony Sutton accused Smith of trying to change the rules midway through the recount.

"As advocates for Tom Emmer's interests in this process, we will not be intimidated by Smith," Sutton said in a written statement.

Smith responded, "We're just doing the best job we can. There's a half-million ballots to count here."

Across town, Ramsey County elections manager Joe Mansky hasn't ruled any ballot challenges frivolous. Mansky has tried to get the campaigns to back away from flimsy challenges, but has resolved to let any ballots go through to the state board that candidate lawyers insist upon.

"Frivolous" challenges are new to the game in 2010. Rule changes giving local officials more power to block challenges they deemed without merit were meant to head off challenge wars that skewed the rolling vote count during the 2008 Senate recount involving Al Franken and Norm Coleman.

But the canvassing board muddied the rule some last week. The five-member panel — four judges and the secretary of state — indicated they still may take another look at challenges deemed frivolous. A report on the number of frivolous challenges is due Friday to the board, which will decide in coming days how to handle them.

Several county officials described different approaches Wednesday.

Benton County recorded 35 challenges, all but two from Emmer. To chief deputy auditor-treasurer Rod Bunting, they weren't close calls: They included those challenged over write-ins for down-ballot races; ovals that weren't completely filled in or where ink spilled outside the borders; and ones where the voter used an "X' rather than darkening the bubble.

"The candidate representatives were trained differently than we were," Bunting said. "Voter intent was very clear to me but they challenged it anyway."

Even though the 35 are recorded in the state's results as legitimate challenges, Bunting said those ballots were counted as votes. That's not the practice seen everywhere.

Down south in Waseca County, auditor-treasurer Joyce Oliver looked to the secretary of state's office for advice when a flurry of challenges came, particularly on ballots lacking any vote in the governor's race. In all, there were 114 challenges out of 7,800 total ballots in the county.

"I wanted to put them in a frivolous challenge group," Oliver said. But she said she was instructed to ship them all to St. Paul, which she did.

"We took them as legitimate challenges," Oliver said, adding, "I wanted to get 'em done. I wanted to get them up to the state."

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