Competing lawyers involved in Minnesota's tangled race for governor maneuvered Friday for a potentially protracted struggle, with Republicans suing for faster access to election data and Democrats challenging whether Gov. Tim Pawlenty should stay in office if the battle drags into next year.
With a recount set to begin by month's end, attorneys for Republican Tom Emmer and Democrat Mark Dayton demonstrated how each side is readying for a fight that could push through December. The new governor is supposed to take his oath on Jan. 3.
For now, Dayton holds an 8,755-vote lead over Emmer, who is entitled to an automatic hand recount of all 2.1 million ballots. The recount phase is scheduled to end in mid-December, but Emmer and the state GOP haven't ruled out a court challenge after that.
There's a lot at stake for both sides in the next moves. Republicans risk a public backlash if they're seen as stringing out an inevitable outcome simply to make legislative gains by keeping a Republican governor in office longer. Pawlenty, a 2012 presidential hopeful, could be damaged if he's seen as part of such an effort. For Dayton and Democrats, delay means lost time in power and a more difficult transition.
Emmer's attorneys sued election administrators in Pine and St. Louis counties, saying they haven't been quick enough to turn over voter rolls, absentee ballot data, background on poll judges and paper trails from voting equipment. They cited the urgency of the upcoming recount _ and noted the potential of a lawsuit contesting the election later.
"Given the expedited timelines for election contests under Minnesota law, as well as the fact that Minnesota has 4,136 precincts, time is of the essence," wrote attorney Eric Magnuson, the former chief justice of Minnesota's Supreme Court.
The Emmer campaign wants a court injunction forcing counties to turn over all requested information within five days. The legal brief says the campaign needs the information to assess whether all valid votes were counted and the underlying tabulations are accurate.
Dayton attorney David Lillehaug criticized the wide-ranging data requests and said Emmer's lawyers have "embarked on one of the biggest legal fishing expeditions in Minnesota history." Dayton's legal team argues that the other side is raising concerns about the election without many facts to back them up.
Republicans have said they are still in the process of investigating reports of voter fraud, machine malfunctions and other irregularities. If the 2008 deadlocked Minnesota Senate race is any guide, those issues won't be fodder for the recount but could be argued in a subsequent lawsuit.
A lawsuit could delay seating of a new governor. A candidate or any registered voter has seven days after a recount to file an election contest, and a trial wouldn't commence for 20 days after that. The schedule for resolving a challenge could push the race far into January, with fresh GOP majorities set to take over the Legislature.
Under the Minnesota Constitution, the term of a governor runs "four years and until a successor is chosen and qualified." Many, including Pawlenty, read the clause to mean Pawlenty would stay on longer.
Dayton attorney Charlie Nauen said he sees a gray area.
"If the numbers show that Mark Dayton has more votes, he's 'chosen' certainly by the people and `qualified,'" Nauen said.
Dayton's lawyers said their are looking into their options and stopped short of saying they would seek clarity in court. In 2008, the state Supreme Court refused to order an election certificate issued to Al Franken in his Senate race until the lawsuit was complete.
The GOP didn't make its attorneys available to comment on the Dayton legal theory. Party chairman Tony Sutton declined comment on whether there is ambiguity in the constitution.
"The Democrats would like this to be about some scheme to extend Governor Pawlenty's term. That's not what we're trying to do here," Sutton said. "We're trying to make sure every vote is counted."
Democrats fear that if Pawlenty stays on, the Republican majorities would advance legislation that Dayton opposes. A key Jan. 15 deadline looms for Minnesota to apply for more than $1 billion in federal health funding, which Pawlenty opposes.