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Gov. recount battle heating up on both sides

ST. PAUL -- A post-election battle for Minnesota votes cranked up Friday when Mark Dayton hired two recount legal experts and Tom Emmer's Supreme Court request met with opposition.

While Democrat Dayton has supported a recount in his governor's race with Republican Tom Emmer, his campaign now is raising its defenses to fight an Emmer-Republican Party request that the Minnesota Supreme Court get involved. The court could decide on Emmer's petition as early as Monday.

Chief in the Dayton battle plan is hiring Marc Elias of Washington, D.C., and Kevin Hamilton of Seattle, attorneys who represented Al Franken in the 2008 recount and subsequent legal challenge to win Norm Coleman's U.S. Senate seat. Before Friday, Dayton was using Minnesota attorneys, even though Emmer and the Republicans brought in a Washington recount lawyer right after the Nov. 2 election.

The Dayton campaign, secretary of state and some counties on Friday asked the Supreme Court to dismiss Emmer's petition.

Emmer and his party claim the letter of state law was not followed in at least some Minnesota voting predicts Nov. 2 when election judges did not properly determine whether the number of ballots equaled the number of voters. GOP Chairman Tony Sutton said he fears there were "phantom votes" cast.

In an interview, Emmer said he wants to make sure votes were properly counted.

Dayton leads Emmer by 8,755 votes, close enough that the State Canvassing Board on Tuesday is expected to order a statewide manual recount of all ballots. That recount would begin in every county on Nov. 29, with Secretary of State Mark Ritchie planning on it wrapping up on Dec. 14.

Emmer and the GOP want the Canvassing Board, in charge of certifying a winning candidate, to do the ballot-voter comparisons that they say did not happen properly in all 4,136 precincts election night.

If there are more votes than voters in any precinct, state law requires an election judge to randomly remove ballots until the numbers match.

Ramsey County Attorney Susan Gaertner, a former Democratic governor candidate, on Friday filed an argument with the Supreme Court asking that the Emmer-GOP request be thrown out, with her office saying that Emmer "seeks to disenfranchise Minnesota voters in precincts where the votes tabulated do not exactly correspond to the number of voter receipts or polling place roster signatures."

In a Dayton court document, the campaign tells the high court that the election was conducted legally and the Canvassing Board should proceed with the recount, and not reconcile ballots and voters.

Dayton's document says there is no reason to believe "that this election was tainted by error."

The attorney general's office, representing Ritchie, argued that the same procedures that Emmer says are wrong have governed the comparing of ballots with the number of voters since at least 2006.

Emmer wants a decision before the Canvassing Board meets Tuesday so that the board can take over the duties of matching ballot and voter numbers. Sutton said he did not know how long such an action could delay a recount, but said it should not be long.

The Supreme Court may hold hearing on the Emmer request on Monday afternoon.

Don Davis reports for Forum Communications Co.

Don Davis
Don Davis has been the Forum Communications Minnesota Capitol Bureau chief since 2001, covering state government and politics for two dozen newspapers in the state. Don also blogs at Capital Chatter on Areavoices.