Minnesota’s Supreme Court justices were expecting to hear augments for and against removing Rep. Bob Barrett (R-Taylors Falls) from the general election ballot. Last month, a district court judge found Barrett does not live in House District 32B and is therefor not eligible to be on the ballot.
The justices were surprised that they also were asked to decide the constitutionality of a recently enacted Minnesota law that says if a candidate is not eligible, they are not removed from the November ballot but the votes won’t be counted an instead there will be a special election on February 14.
Attorney Virginia Stark, who argued that Barrett lived outside the district, said the new law is unconstitutional because it doesn’t count votes that are cast in the general election. She said the court must not only find that Barrett is ineligible to be on the ballot, but also must order the votes that are cast the November House District 32B election be counted. Such a remedy would almost guarantee that Laurie J. Warner (DFL) would win the election.
Stark said if the court found Barrett ineligible and the November ballots were not counted, the residents of 32B would not have representation for at least the first six weeks of the 2017 legislature.
Barrett’s attorney, R. Reid LeBeau, said removing Barrett, but counting the November election would harm the Republican Party’s right to have a candidate on the general election ballot. Stark countered that the Republican party has no constitutional right to place a candidate on the ballot and party members knew the “cloud” of residency was hanging over Barrett when they picked him to be the candidate.
Under questioning from Associate Justice David Lillehaug, Stark said she had not notified the Minnesota Attorney General that she would be challenging the constitutionality of the state law in court. Lillehaug said the Attorney General is supposed to be notified. A representative from the Secretary of State’s office told the justices that it considered the new special election law constitutional.
Comparisons to Coleman-Franken US Senate election contest
Video above: video of entire Minnesota Supreme Court hearing
Lillehaug pointed out that when Norm Coleman filed an election contest against Al Franken in 2008, Minnesota had no representation in the US Senate for many months. Lillehaug was an attorney for Franken at the time. Lillehaug said the court did not find that delay unconstitutional, so why would this be unconstitutional?
“Because it results in two elections,” said Stark. “(In the) first election people’s votes aren’t counted. They are without representation because of the statute. It requires a second election.”
Last month, the court had directed Second Judicial District Judge George Stephenson to hold a hearing on the case. Stephenson found there is “clear and convincing evidence” that Barrett doesn’t live in 32B. Minnesota law requires legislative candidates to live in the district they want to represent for at least six months before Election Day. Barrett owns a home in Shafer which is outside 32B. However he claims to live in a house he rents in Taylor Falls, which is in 32B.
Judge Stephenson wrote that three people visited the Barrett’s Taylor Falls rental house a total of 30 times between July 4 and Aug. 1 and found little to suggest the home was occupied.
Stark said the Minnesota Supreme Court had ordered Judge Stephenson to consider “removing” Barrett from the ballot and had not mentioned the new law requiring a special election. She only became aware of that law after the Secretary of State had filed a brief pointing it out. Asked after the court session why she did not file a brief in response to the Secretary of State and instead waited until today to bring it up, Stark said that she had been “out of the country.”