What happens after a congressional candidate dies less than a month from Election Day?

A woman in front of an image of the U.S. Capitol
Paula Overby, the Legal Marijuana Now candidate for Minnesota's 2nd Congressional District seat.
Courtesy of Paula Overby

What happens now that a candidate for U.S. Congress in Minnesota’s second district has died, less than a month from the election? Paula Overby, the Legal Marijuana Now candidate for Congress in Minnesota’s 2nd District, died on Wednesday. She was competing in one of the tightest House races in the country between incumbent DFLer Angie Craig and Republican Tyler Kistner. To talk more about what Overby’s death may mean for that second district congressional race and what the ballot will look like now, Secretary of State Steve Simon joined host Cathy Wurzer.

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Audio transcript

CATHY WURZER: And speaking of the election, one of the day's top stories includes questions over what happens next now that a candidate for Congress in Minnesota's 2nd District has died less than a month from the election. Paula Overby, the Legal Marijuana Now candidate for Congress, died yesterday.

She was competing in one of the tightest house races in the country between incumbent DFLer Angie Craig and Republican Tyler Kistner. To talk more about what Overby's death may mean for the 2nd District congressional race and what the ballot will look like now, we're joined by Secretary of State Steve Simon. Welcome.

STEVE SIMON: Thank you for having me.

CATHY WURZER: Listeners may remember this coincidence, that the same thing happened in the 2020 race where Legal Marijuana Now candidate Adam Weeks died in late September. His name was still on the ballot, and he received nearly-- I believe-- 6% of the vote. Will Paula Overby's name still appear on the ballot this time around?

STEVE SIMON: It will, and for exactly the reason that you suggested, which is we, unfortunately, have experience with this. And by the way, obviously, condolences to Ms. Overby's family. I came into contact with her a number of times over the years. She was spirited and principled, and I know she'll be missed.

Yet, we unfortunately have the same situation, as you said, two years ago, so we have guidance from the courts. And the guidance that the courts gave us two years ago in 2020 was that, notwithstanding a Minnesota law that talks about what would happen in this situation, the court said, no. The Minnesota law only applies to Minnesota or state level contests. It does not apply and cannot apply to federal contests

So the bottom line to your question, Cathy, is it's full speed ahead. Ms. Overby will appear on the ballot. There is no mechanism that we're aware of to replace her name on the ballot. The votes will be counted for Paula Overby, but it's really full speed ahead and really no change.

CATHY WURZER: Do you imagine that there could be any calls for a special election again based on what's happened?

STEVE SIMON: I think it's very unlikely. Maybe calls for it and someone could always seek that relief in court, but it's hard for me to imagine how anyone would get around the court ruling from two years ago, which quite clearly said that in several races-- US House, US Senate-- the state law, which would normally govern this situation, would not apply.

And by the way, just for the benefit of your listeners, the state law that I've cited was something that our office along with a bipartisan group in the legislature fashioned a few years ago in order to deal with, frankly, the Paul Wellstone style situation. And it's ironic that we're coming up on the 20th anniversary in a few days of that incident.

Namely, what do you do when, pretty close to an election, a candidate of a major party dies or is incapacitated? And we put our heads together, and we came up with a law that would apply to that situation. But again, the federal court two years ago said that law has limited reach only within Minnesota state level contests and not federal contests.

CATHY WURZER: You know, of course, many listeners have already voted for early voting. And I know they want to know, well, what happens to my votes if I voted for Paula Overby?

STEVE SIMON: Two answers to that. First, anybody in Minnesota can always claw back their absentee ballot up to seven days before the election. This year, that would be Tuesday, November 1-- anyone for any reason in any contest in any area.

So if any listeners vote absentee today, tomorrow, next week, et cetera, and then have a change of heart about one or more races, you can always go to whatever entity sent you that ballot, be it a city or a county, and say, I want my ballot back. I want a do over. You can do that. That's been a longstanding law in Minnesota, and that's no different in the Paula Overby situation.

But then there's the other question of, well, what happens if someone doesn't do that? And the answer there is that their ballots will be counted for Paula Overby, and that will be registered and recorded as a vote for Paula Overby. And just so your listeners know, the number so far-- only roughly 55,000 people across the whole state, not just the 2nd Congressional District, have had ballots that have been accepted.

Many more have gone out, but people are sitting on them-- as you would expect-- and haven't voted them yet and probably don't plan to until closer to the election. So we're talking about 55,000. We haven't yet isolated how many of those are in the 2nd CD. But if you just divide 55,000 very roughly by our eight congressional districts, that means it's likely-- I would say that we're in the ballpark of 6,000 to 7,000 people in the 2nd Congressional District that have already sent in ballots.

Now, we don't know and won't know whether they voted in that particular contest, but those ballots probably come from that place, the 2nd Congressional District. So it's not a massive number, but if you're a person who lives there and you're among the 6,000 or 7,000 and you voted based on the appearance or existence of the Legal Marijuana Now Party, then you might want to consider so-called claw back provision where you can get your ballot back.

CATHY WURZER: All right. Good information about CD2. Say, I've been told that I won't be moderating a debate tomorrow night on statewide television between you and your republican opponent after agreeing to it several weeks ago. You now have a scheduling conflict?

STEVE SIMON: Yeah, I feel terrible about that. This is the one and only-- that I'm aware of-- requests that we've received that we've had to back out of, and I certainly apologize for that. It's a case of a crossed wire. Someone was going to be unhappy, and I'm so sorry that it has to be you and Almanac. I hope we can do some sort of work around-- if not a debate, something. But I've so far been batting 1,000 until now saying yes to anyone who invites me.

CATHY WURZER: Debates seem to be falling out of favor with candidates. The governor has only agreed to three debates this cycle, and there are candidates across the country on both sides not wanting to debate, to defend their records, or they're scared to make a misstep or to misspeak. And as a person who's made democracy his career, what do you think is lost for voters-- beyond this Almanac thing. But what do you think is lost for voters and our democratic system with this trend that we're seeing across the country?

STEVE SIMON: Yeah. I believe in debates. I think it's a public good. I think people have an expectation to see candidates side by side and sort of test their mettle against one another. And you lose something when it's just one interview with one candidate and then another one a few days with another. To see them in the same studio or to hear them in the same studio on radio I think is good.

What's being lost is-- I'm speaking very generally now, not as to any one candidate or contest. But I think it's generally a good thing when the public gets to see candidates face to face or hear them voice to voice. So it's just that sort of instant comparison. Rather than having to go to two separate places, see them and hear them side by side.

CATHY WURZER: All right. I appreciate your time. Thank you so much.

STEVE SIMON: Thank you very much.

CATHY WURZER: We've been talking to Minnesota Secretary of State Steve Simon. He's running for re-election. By the way, we do have debates here on MPR. The candidates for attorney general will debate on our MPR news stations October 14 at noon. And yes, there is a radio debate between Governor Walz and his Republican opponent Scott Jensen. That's October 28th at noon.

The governor and Scott Jensen are doing one state-wide debate between a number of smaller greater Minnesota TV stations, but the Twin Cities viewers will not be able to see the debate. Anyway, all these debates can be seen live-- well, it can be heard live on the radio with a video stream at mprnews.org.

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