To Elect or Not to Elect……That is the Question.

….with all apologies to William Shakespeare, of course.

Oh hey. So, it’s been awhile since my blog posting. It’s a long, convoluted back-story that’s another blog posting under construction. Suffice to say, I lost my secret muse for the blog, but she’s another blog entry for another time (which I’m writing now, so how’s that for teaser campaign for said future blog posting?). Imma gonna to ease myself back into the ole’ blog saddle by avoiding the quicksand of dating, and talk about a topic that similarly drips with salaciousness, intrigue and sultry longings ….election law!

Some serious legal shit is going down in Minnesota’s Second Congressional District race. A few weeks ago I posted a Facebook update (which I’ve unlocked to the public) detailing that the Second Congressional District election featuring (mainly) incumbent Angie Craig (D) squaring off against Tyler Kistner (R). I say “mainly” because there’s another party on the ballot called Legal Marijuana Now (“LMN”) that squeezed out “major party” status, thus automatic ballot access, by winning 5% of the vote in the 2018 State Auditor race. Therein lies the rub….

[Rando side note – we’re going to call the Second Congressional District now as “CD2,” if only because: a) we can sound like all the cool politico pundits on C-SPAN….(“CD2 leans Democratic, but has been known to kiss a Republican or two…”)…see? Cool, right?… ; and b) I’m getting bored of typing “Second Congressional District.” It will all be very awesome. Trust me.]

The LMN’s candidate for CD2, Adam Weeks, sadly and unexpectedly passed away on September 21. Under a 2013 Minnesota law, whenever a major party candidate dies within 79 days of the November general election, the election for that seat is cancelled, and re-scheduled for the following February (basically, to give time to the major party suffering the death to endorse a new candidate and allow that candidate sufficient time to campaign). The law was largely passed after the legal hell that broke loose when Sen. Paul Wellstone’s (my former boss) died in a plane crash just days before the 2002 Senate election, since there was no clear statutory mechanism then to replace a deceased candidate on the ballot.

Mr. Weeks died within 79 days of the November 3 election and was a major party candidate, thus the law was triggered and the Secretary of State announced that the CD2 election was cancelled, with a special election slated for February 9, 2021. Just like legal clockwork, right?

Au contraire, dear reader, because when it comes to elections……”there will be lawyers” (shamelessly stolen from the former Packers GM who I follow on Twitter – by the way, he’s really good and informative about business of football, and is totally worth a follow).

The Angie Craig campaign sued the State of Minnesota a few days after the Secretary of State’s announcement, contending that the law was preempted by federal law.

[By they way, you may be asking “what the actual $%&* does “preempted” mean???”, and that’s a great question. Basically, it means that when a state law conflicts with federal law, the federal law wins due to the Constitution’s “Supremacy Clause” (Article VI, Paragraph 2, which states “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” Thus, state law is preempted by federal law.]

What’s the federal law that a state law rescheduling an election could possibly run afoul of? I had the same damn question. Another quick Constitutional primer – the Elections Clause in the Constitution permits states to write their own laws for the election of U.S. Senators and Representatives, but allows Congress to overrule those laws. Congress exercised its powers in this realm by requiring that all elections for U.S. Senators and Representatives be held on the Tuesday following the first Monday in November every even-numbered by year (if you really want to geek out, here’s the actual statute: 2 USC 7) – which is November 3, 2020 this year.

So back to the Angie Craig Campaign lawsuit. Craig argues that the state law moving the election to February conflicts with the federal mandate to hold the U.S. House election in November, and is thus “preempted.” Basically, Craig contends that the show must go on in November.

But….a universal truth in the law is that there’s always an exception (or even an exception to the exception…this is why lawyers drink). Congress also gave states flexibility on election timing to fill vacancies for U.S House members “whether such vacancy is caused by a failure to elect at the time prescribed by law or by the death, resignation, or incapacity of a person elected.” (again geeks – 2 USC 8).

The State and Kistner [note that the Craig only sued the state, but Kistner got himself added as a defendant through a process called Intervention, because he wanted the election rescheduled, and probably didn’t trust the state to fully defend the lawsuit, and his concerns were not off-base] countered that the state is free to declare that a “failure to elect” occurs when a major candidate dies, thus the exception applies.

Of course, Craig disagreed with this conclusion, arguing that a “failure to elect” cannot occur simply because a party’s candidate dies. Moreover, since Congress provided for the death of a sitting U.S. Representative later on in the exception, Craig contended that Congress easily could have provided for the death of a challenger candidate, and they didn’t, which evidences that Congress didn’t intend the statute to cover this situation.

The trial court bought the Craig’s arguments, and ruled on October 9 that the state law was likely preempted by federal law, and ordered the election to be held this November after all.

Kistner appealed, and in a bit of a surprise at least to me, the state declined to participate in the appeal, fearing that the good citizens of CD2 were confused enough already about whether the November election was a thing or not, and didn’t want to add further muddle the picture (so Kistner’s decision to get named as a defendant proved wise).

The appeals court ruled yesterday against Kistner, declaring that the election would go on as scheduled in November. Basically, the court the held that while the state may think that the LMN Party was a “major party,” it wasn’t a major enough party in the court’s eyes to justify canceling a Congressionally-required election.

In fact, the court went out of its way to throw a ton of shade at the LMN Party (and indirectly, the state law). To wit, the court noted that “If the death of a candidate would ever justify cancellation of an election and declaration of a “failure to elect”…..then we think it likely that the candidate must represent a political party with a greater history of electoral strength than the [LMN Party] in Minnesota.” The court also went into great detail demonstrating the weak showings that the LMN Party has had in recent elections, implying that its major party status was a lark.

Kistner has indicated he’ll appeal to the U.S Supreme Court, and it will be interesting to see what the Court will do with the appeal (they’ll need to act within the next couple of days). The Court has been all over the board on its rulings the past few weeks with election law issues, so any prediction from me would be the equivalent of throwing darts (and I’m a lazy dart thrower).

Why all the fuss? Why can’t Angie Craig wait until February? Why does Kistner want to delay to the election. The campaigns, predictability, are portraying themselves as protecting the “will of the people” and other altruistic poppycock. Bullshit. Let’s just be realpolitik about all of this. Craig wants the election in November because she’s likely to win a November election. She’s comfortably ahead in the polls, and she wants to surf the expected anti-Trump Democratic wave in Minnesota. If there’s a special election in February, it will likely be viewed as a proxy contest to gauge the relative strength of the parties post-November, and bazillions of dollars will likely flow into the race. Also, you just don’t know who will show up for a special election where there’s only one race on the ballot. In fact, I’ve often noted there are there great crapshoots in life: 1) dating; 2) baseball prospects; and 3) special election turnouts. Kistner knows all of this, and likely believes he stands a much better chance in February than in November.

Stay tuned intrepid reader. Great to be writing for you again.