ST. PAUL -- One of Minnesota's two governor hopefuls is in Washington, D.C. today, meeting with governors and White House officials, while representatives of the other are challenging ballots and thinking about challenging the election in court.
Democrat Mark Dayton, holding his statewide recount lead of nearly 9,000 votes, is off to the annual Democratic Governors' Association meeting as he prepares to be governor. Dayton has been careful not to act too much like a governor-elect, but says he expects to win and has a transition team in place.
Republican Tom Emmer, who largely remains out of sight, has turned most of the recount duties over to the Republican Party. He downplays his transition efforts and Republican leaders have been less visible during the election recount than Dayton's team.
On Tuesday, Republican Chairman Tony Sutton made it clear the Emmer team is considering an election lawsuit following the recount that began Monday.
The vote changed little Tuesday. With 70 percent of the state's 2.1 million votes recounted Tuesday night, Dayton slipped slightly, but remained in control of the race.
Unofficial secretary of state vote totals showed Dayton down 38 votes from before the recount and Emmer down one, giving Dayton 8,733 more votes than Emmer. Going into the recount, Dayton led by 8,770.
However, Emmer's representatives challenged 597 Dayton votes, while Dayton's people challenged 143 for Emmer. If the challenged ballot procedure plays out as usual, most of those votes eventually will be rewarded to their original candidate, giving Dayton a bigger advantage.
Seventy-six of Minnesota's 87 counties had completed their counts Tuesday night, the secretary of state's office reported.
"This is a steep mountain for Tom Emmer to climb and it is getting more steep every day," said Ken Martin, who directs Dayton's recount team and says Dayton really has gained more votes than the secretary of state indicates.
No Minnesota politician has overcome a recount deficit as large as Emmer faces.
Sutton admitted that the recount may not produce enough votes for Emmer to win, but he said Republican attorneys are gathering evidence that could be used in a court challenge after a governor winner is declared, likely on Dec. 14.
At this point, Sutton said, he does not know whether he would advise Emmer to take the election to court.
Republicans could base a court challenge on several issues, Sutton said, including what the GOP says is a failure to properly reconcile the number of votes with the number of voters on election day. He also said there are questions about whether people violated a law that allows a voter to tell election officials that others are eligible to vote.
The party chairman said lawyers are looking at other potential legal problems, but he would not elaborate.
"We are behind, to be frank," Sutton said. "We need to look aggressively to make sure every single Emmer vote is being counted."
One example of the aggressive counting was in Renville County Monday, where an Emmer representative questioned election officials' decisions on 423 Dayton ballots. All but one challenge were ruled to be frivolous, and thus the ballots were counted.
Sutton said Republican lawyers will look at the challenged Renville ballots and decide whether to withdraw the challenges. Most were questioned because write-in votes could be considered as identifying the voter, which is against state law, he added.
While election officials recount each of the 2.1 million ballots, Emmer and Dayton representatives are watching and sometimes challenge an election official's judgment about who the voter intended to pick. Those challenged ballots are to be counted starting next week by the State Canvassing Board.
Few problems were reported Tuesday, even in a DFL-dominated county that Republicans watched closely.
The recount went smoothly again in St. Louis County where Elections Director Patricia Stolee said county officials are well on schedule to finish re-counting ballots by Thursday.
More than half the county's ballots were counted by the end of the day Tuesday with only seven ballot challenges for the day. The recount has been within a vote or two of the election day count in every precinct.
A Dayton recount report indicated there may be "possible vote discrepancies" in Dakota County, with some votes "showing up in the wrong precincts."
Republicans sent 600 volunteers around the state on Monday, fewer on Tuesday since most counties had wrapped up their work. Eight or nine people manned the GOP recount headquarters.
For Dayton, nearly 1,000 volunteers scattered around the state Tuesday, with 50 to 60 in the Democrat's headquarters.
John Myers of the Duluth News Tribune contributed to this story. Don Davis reports for Forum Communications Co., parent company of the Woodbury Bulletin.