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Election 2020
Brian Bakst
St. Paul

November or February? Judge to decide timing of 2nd District race

Two side by side portraits one of a woman and one of a man.
DFL U.S. Rep. Angie Craig (left) and Republican challenger Tyler Kistner. The timing of the 2nd Congressional District election is before a federal judge, who is weighing whether to keep it in November or push it off until February.
Evan Frost | MPR News and Submitted

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The timetable of a hotly contested congressional election is in the hands of a federal judge, who sought Wednesday to juggle apparent discrepancies between U.S. and Minnesota laws pushed to the fore by a candidate’s recent death.

Judge Wilhelmina Wright’s conundrum boils down to this: What constitutes a vacancy and when is a “failure to elect” standard met? Her answer will determine if the 2nd Congressional District race is decided in November or during a February special election.

Lawyers for Democratic U.S. Rep. Angie Craig, Republican challenger Tyler Kistner and DFL Secretary of State Steve Simon offered vastly different answers to the questions during a hearing held over the telephone. Wright didn’t rule from the bench, but with so little time left before November’s election, a swift decision is assured.

Wright put her finger on the key question about 10 minutes into the 80 minute hearing.

“Is there in fact a vacancy caused by the death of a person elected?” Wright asked, drawing the distinction between a party nominee and the election victor.

Kevin Hamilton, an attorney for Craig, said no one has been elected and therefore a federal vacancy law hasn’t been satisfied enough to cancel the Nov. 3 election in the race.

“The death of a candidate prior to an election is not a failure to elect. States hold an election all the time where a candidate dies before an election,” Hamilton said, adding, “this happens. Sad truth: All of us are mortal.”

Simon is the named defendant in the case. His lawyer, Assistant Attorney General Nathan Hartshorn, said a law the Minnesota Legislature passed in 2013 anticipated that a vacancy caused by the death or incapacity of a major party candidate close to the election was an exigent circumstance that could be seen as a preemptive failure of election.

“We’re facing a deceased candidate, not just a short calendar,” he said. “An election that is conducted between a living candidate and a dead one is not one that the state of Minnesota believes is sufficient, is legitimate to send a representative to Congress.”

Hartshorn said people who supported the deceased Adam Weeks of the Legal Marijuana Now Party or would back his replacement are being deprived the chance to vote for a viable candidate. Weeks, 38, died unexpectedly on Sept. 21.

Under the state law at the center of the dispute, votes cast in the race won’t be tallied and the seat will sit empty until a new election in February.

Simon’s side had support in the hearing from a lawyer representing Kistner, the GOP nominee who favors a delay. R. Reid Lebeau II said it’s too close to the election to change course now. He said people who cast early votes for Weeks or who skipped over the race after his death would be disenfranchised if the election isn’t postponed.

He said a candidate’s death is akin to a natural disaster, which would qualify as a reason to move an election under federal law.

“It’s no different than if there were an earthquake a week before an election and the timing of the election had to be moved a week, two weeks, a month out,” Lebeau said. “That’s an exigent circumstance.” 

“But there hasn’t been a ‘failure to elect,’ correct?” Wright pressed Lebeau.

“But there will be your honor,” he answered, citing the state law preventing certification of votes in the race. 

In rebuttal arguments, Hamilton said there’s time for people to request and cast substitute ballots if they want a do-over.

“States don’t have the power to say, ‘yeah but in this circumstance where there’s not enough candidates we’re going to reschedule the election until there are,’” Hamilton told Wright. 

Paula Overby
The Legal Marijuana Now Party has nominated Paula Overby to run in Minnesota's 2nd District.
Courtesy of Paula Overby

The Legal Marijuana Now Party has put forward a substitute candidate, Paula Overby, if the election gets moved.

Overby ran unsuccessfully for the DFL nomination for U.S. Senate this year and has in the past run as a Green Party and Independence Party candidate for various offices, including for the 2nd District seat in 2016.