As many of us who were watching Minnesota election results closely last night know, Democrat Mark Dayton appears to have eked out a slim win over freaky Republican Tom Emmer in Minnesota's gubernatorial race. Echoing the Franken/Coleman slugfest of two years ago, however, it appears that this race is headed for a recount, too: with all precincts now counted, Dayton leads by 8,854 votes, or 0.42% of the total cast. That's within than the 0.5% threshold that will trigger an inevitable recount. (Note that three weeks of canvassing and error-correcting still lie between us and the certified results.)
Dayton will almost certainly win the governorship—but in the end, Democrats (and indeed Minnesota) seem frighteningly likely to lose much more.
On one hand, the contrast between this race and Franken/Coleman looks positive for Dayton: whereas the vote differential in 2008 was never more than a few hundred votes after the original tally was completed, here Emmer would have to dig up somewhere around 9,000 votes in order to reverse the result.
But. Oh, what a "but."
It seems entirely likely that Emmer doesn't actually have to win the recount in order to get the kinds of policy outcomes he's looking for: all he has to do is delay the process for long enough for his partisan allies in the Minnesota Legislature and (here's the rub) the Governor's Office to take one-party control of the Minnesota government. This is a serious threat that doesn't seem to be getting much play yet today.
As background, Minnesota Republicans surprised many political observers by taking both houses of the Minnesota Legislature last night. When the next Legislature takes office on the first Monday in January (January 3), 2011, Republicans will control the state house for the first time since 2006, and the state senate for the first time since the early 1970s.
Meanwhile, Article V, Section 2 of the Minnesota Constitution provides as follows:
TERM OF GOVERNOR AND LIEUTENANT GOVERNOR; QUALIFICATIONS. The term of office for the governor and lieutenant governor is four years and until a successor is chosen and qualified. Each shall have attained the age of 25 years and, shall have been a bona fide resident of the state for one year next preceding his election, and shall be a citizen of the United States.
(Emphasis added.)
To my understanding, a successor "is qualified" when (s)he takes the oath of office.
The term of office at issue, here, of course, is the term of current Minnesota Governor Tim Pawlenty. Pawlenty has already announced he's leaving office; absent further Dayton/Emmer election complications, that will happen on January 3, 2011, the same day the new Legislature is seated.
But a drawn-out election contest—such as the one we just saw Al Franken and Norm Coleman fight, one that ended in July 2009—could change that picture drastically. Pursuant to the above constitutional provision, it appears Pawlenty would stay in office until court challenges have been resolved and his successor (almost certainly Dayton) is able to take his oath of office. It appears that Pawlenty has noticed this:
The uncertainty about the [Dayton/Emmer] outcome is so great that Gov. Tim Pawlenty said Wednesday that he's willing to stay in office until the race is resolved.
He issued a formal statement saying, in part, that he is "fully committed and prepared to accomplish the swift and orderly transition to the next governor as soon as a final determination is made. As required by Article V of the Minnesota Constitution, I will continue to serve as governor until a new governor takes the oath."
What's more, there is historical precedent for Pawlenty staying on: the 1962 Minnesota gubernatorial election was similarly dragged out, and incumbent Elmer Andersen was able to stay in office until he was declared the loser in March of 1963:
In the 1962 race between Lt. Governor Karl Rolvaag and Governor Elmer Andersen, the usual stakes were raised just a little bit higher. It would be the first time in Minnesota’s history that the winner would hold a four-year term.
On Election Day, November 6, 1962, 60% of eligible voters—1.3 million—cast ballots in spite of a driving snowstorm in the northern part of the state. Forty percent of those votes were hand-cast ballots. The returns created a seesaw as they came in over the next two days. Initial official returns gave Rolvaag a 59-vote plurality.
[....]
On March 21, 1963, the three-judge panel issued an order to the Secretary of State, Joe Donovan, to issue a “Certificate of Election” to Rolvaag. A Certificate of Election was issued to Rolvaag on March 25 and he was sworn in at noon that day—139 days after he was elected.
So we're left with the following disastrous possibility: if Tom Emmer contests the election and is able to drag the process out beyond January 3, when the Legislature is seated, Minnesota will, as long as that process lasts, be left with a Republican-controlled legislature and Republican Governor Tim Pawlenty. (As it happens, the Minnesota Supreme Court has a majority of Pawlenty-appointed conservative justices, as well.) In light of the years of fighting between the Pawlenty Administration and the then-Democratic Legislature over the state budget, it is frightening to contemplate the damage Pawlenty and the new Legislature could inflict between January 3 and whenever Dayton is declared the victor of last night's election. Whether it's March, July, or whenever, it seems possible that there won't be much state government left for Dayton to preside over once he gets there—and with a Republican Legislature seated, he won't be in a position to undo much of anything.
I'm not entirely clear on how this can be avoided. Dayton's current margin over Emmer is 0.42% of the total ballots cast; to avoid the 0.5% recount he'd need to net approximately 1,700 votes between now and the state canvassing board's meeting on November 23. That seems unlikely—and it wouldn't prevent a (frivolous) Emmer election contest anyway, though it would give the courts a bit more time to end this before January.
The other option is to somehow spur the courts to decide a contest in extremely short order. Minnesota Secretary of State Mark Ritchie has promised that a recount would take much less time to conduct this year than it did in 2008—but that still leaves a horrendously short 41 days between the canvassing board meeting and the seating of the new legislature. Could a recount be finished and Emmer's suit adjudicated and finally decided in that time? I very much doubt it. Just about the easiest thing to do in litigation is delay, delay, delay.
Frightening as it is, I think we're looking at one-party rule in Minnesota for a terrifying chunk of 2011. Not to mention that Tim Pawlenty can use the time to prove his right-wing bona fides for the Republican presidential primary electorate by absolutely annihilating our state.
Oh, shit.
If someone would like to show me in comments why I'm simply wrong about this, I would very much appreciate it.
Edited to add: It appears that Eric Kleefeld of TPMDC noticed this. Possibly before I did; I can't tell.
A Star Tribune article showing state pols waking up to the reality of what might happen in early 2011 is here. The article doesn't entirely show it, but Minnesota's politicians are taking this possibility very seriously.