What Does A “Frivolous” Challenge Look Like?

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The buzz word on day one of Minnesota’s Gubernatorial recount is “frivolous”. Changes in state election law give election judges the power to label ballot challenges as “frivolous” which the recount rules from the State Canvassing Board define as:

“A challenge is frivolous if it is based upon an alleged identifying mark other than a signature or an identification number written anywhere on the ballot or a name written on the ballot completely outside of the space for the name of a write-in candidate. The absence of election judge initials on a ballot cannot be the basis of a challenge.”

In Hennepin County Monday there were 150 frivolous challenges according to County Elections Manager Rachel Smith. 95% of those she said came from the Tom Emmer campaign. The Dayton campaign says that as of 2:30pm Monday there had been 226 frivolous challenges statewide. 221 of them were from the Emmer campaign. 107 of them were from the relatively small county of Renville.

So despite promises from Emmer’s lawyer former Supreme Court Chief Justice Eric Magnuson to avoid frivolous challenges, it appears the Emmer campaign has an itchy trigger finger for making them. Here are some examples of frivolous challenges from the Emmer campaign as provided by the Mark Dayton campaign.(PDF of the full ballots) You may need to look at the full ballot to decide if there were identifying marks as claimed by the Emmer campaign.

By the way, the statute that prohibits “identifying marks” dates back to the days when some folks were apparently paid to vote for a candidate and the way they proved it was by marking the ballot in a way that someone could tell they were the ones who voted for that candidate.

The Emmer campaign’s claim that this ballot had an identifying mark and should not be counted was rejected by the election judge as “frivolous”The challenge on this ballot says it’s not a vote for Dayton, calling it an “undervote” presumably because the voter didn’t color completely inside the circle and missed a little bit of it.
Emmer campaign’s claim, that this is not a vote for Dayton was rejected by the election judge as frivolous.The Emmer campaign claims this ballot contains an “identifying mark” and should not be counted for Dayton.
The Emmer campaign’s claim that this ballot had an identifying mark and should not be counted was rejected by the election judge as “frivolous”The Emmer campaign’s claim that this ballot had an identifying mark and should not be counted was rejected by the election judge as “frivolous”
The Emmer campaign said this ballot had “identifying marks”. Election Judge said the claim was frivolous.You can only vote for one team. But this voter chose two. Emmer campaign says it was supposed to be a vote for them. Rejected as frivolous challenge.
The entire ballot had this combination of check and oval fill in. Emmer campaign said it shouldn’t be counted as a vote for Dayton. Election Judge disagreed.This voter picked everyone but Tom Horner. Emmer campaign says its a vote for them. Election Judge rules that claim frivolous.
Ken Pentel gets more ink here than Emmer, but the Emmer campaign says this vote should be theirs. Not so, rules the Election Judge.Emmer campaign claims there are “identifying marks” on this ballot. We couldn’t find them and neither apparently could the Election Judge and it was ruled a frivolous challenge.
Michael McIntee

Michael McIntee is a former network TV news executive with more than 30 years of broadcasting experience. He began his broadcasting career at the University of Minnesota's student radio station. He is an expert producer, writer, video editor who has a fondness for new technology but denies that he is a geek. More about Michael McIntee »

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