Minnesota’s Supreme Court justices are facing a Monday deadline to rule on a DFL petition to remove Republican presidential candidate Donald Trump from the state’s general election ballot. According to the Minnesota Secretary of State, Monday is the latest that revised ballots can be printed in time for voting to begin. A million ballots with Trump’s name on them have already been printed.
Democrats say Republicans did not follow state law in choosing alternate presidential electors for Trump, and therefor he and his running mate Mike Pence should be removed from the ballot. In a brief filed late on Friday Republicans say the petition to remove Trump is too late, state law was followed, and removing Trump would be unconstitutional.
Chief Justice Lori Gildea indicated the court is concerned the petition may be too late. She ordered both sides to weigh in on whether the case should be dismissed because of “laches” — a legal term meaning you waited to long to file the case.
The DFL says the GOP’s error only came to light on August 26 and it moved as quickly as possible to file its suit. Republicans say the DFL could have acted as early as May when the GOP failed to choose alternate presidential electors at its state convention, and should have acted on August 3 when the Secretary of State notified Republicans it had alternate slots to fill.
Attorneys for the Minnesota Republican Party say even if the court agrees the lawsuit was filed in time, the Trump/Pence ticket should not be removed. Their brief says Minnesota law does not link certifying a presidential candidate for the ballot with properly choosing presidential electors and alternates. They also argue that federal court rulings say the U.S. Constitution forbids removing presidential candidates just because there were “technical defects” in how alternate presidential electors were chosen.
Claiming unfair delay not always a winning argument
So will the claim that the DFL waited too long hold sway with the court? Earlier this week the court ruled in an election case where Rep. Bob Barrett (R-Taylors Falls) said the DFL waited too long to challenge his residency in the district. The court apparently did not buy that argument, ruling that Barrett was ineligible to run because he wasn’t living in 32B six months before the November 8 election as required by the Minnesota constitution.
An attorney who litigates election cases on behalf of Republicans says the claims of delay in the Barrett case and the Trump case are very different and will probably result in a different outcome.
“There is a uniqueness to the Bob Barrett case,” said Harry Niska. “It doesn’t decide the election or entirely remove a political party from the ballot. It instead triggers a special election that will happen in February.”
“It’s not clearly stated in Minnesota state law that if you fail to properly choose one or more of your alternates that the party tries to designate that the right remedy for that is to remove the entire ticket from the ballot,” says Niska. “I think if the court decides not to rule on laches, I think the court will very likely say that the remedy of removing the Trump/Pence entire ticket from the ballot is a disproportionate remedy and not one that’s dictated by the statute or really within the intent of those who drafted the statute.”
So what is the court likely to do if it doesn’t outright reject the case because it was filed too late? Niksa thinks the court will reject the “drastic” remedy of removing Trump. “The court I think is likely to say the right remedy for that is to maybe replace those alternates at some future point in time if necessary according to the process for elector replacement which is set out in the statute in another section.”
Whatever the court rules will be precedent setting. Niska says the language about presidential elector alternates being selected by “delegate conventions” was added to state law just last year and this election is the first test of that language.