A three-term Minnesota House member's standing on the November ballot rests with the state Supreme Court, which is deciding a residency dispute surrounding Republican Bob Barrett.
After listening to more than an hour of arguments Tuesday, the Supreme Court must now decide whether Barrett's name should be removed. A referee appointed by the court recommended that action in late August after siding with those arguing the lawmaker had only a minimal presence in the rented home. If justices nix Barrett, a new election would be called for next February. But the court also could declare unconstitutional a relatively new state law calling for a new election in cases like this.
Virginia Stark, an attorney representing local Democratic activists trying to strike Barrett's name, discounted the political motivations in the case. Those who raised questions about Barrett, she said, "did not create this situation. Mr. Barrett did. The only unclean hands in this case are the ones that signed the affidavit of candidacy and those that supported the ruse."
She added, "There's only one way this court can rectify what this court has done and that is to adopt the referee's findings of fact and remove his name from the ballot."
Barrett attorney Reid LeBeau said it amounts to a "political gotcha game" and relies on flimsy evidence.
"They can't take him out at the ballot so they are going to attempt to take him out in court," LeBeau said.
The dispute comes during a fierce partisan fight for control of the 134-member House and involves a district that should be an afterthought for Republicans.
Barrett owns a home in Shafer where his wife resides, but insists he spends sufficient time and has taken enough steps to qualify as a resident in Taylors Falls. The distinction matters because Minnesota legislators must live in the district they represent at least six months before the election.
While Barrett testified to having a light footprint in the rented home since he has no trash pickup there and uses a laundromat to wash clothes. Barrett lists it as his address on his driver's license and passport applications. The people behind the challenge said they visited the house, set up a motion-sensitive surveillance camera and made other attempts to unsuccessful efforts to place Barrett at the Taylors Falls house during a 15-day period in late July.
The court-appointed referee, Ramsey County District Court Judge George Stephenson, reviewed evidence and took testimony from Barrett and others before deciding that he failed to qualify as a resident. Stephenson noted a similar challenge to Barrett's residency in 2014 and wrote in his opinion that the lawmaker's explanation this time wasn't credible.
Some justices said they were inclined to defer to a fellow judge but also were openly skeptical about what went into the finding, saying vacation or another valid reason could explain an extended absence from a home.
"If I were sitting on this as the referee, based on what I've seen I wouldn't have reached the same conclusion as the referee. I don't think this is great evidence," said Justice David Stras. "But I don't think I can sit here and discount the credibility determinations."
A trickier question would await justices if they decide to have Barrett removed. A 2015 law says that in a case like this, the November election would be nullified and a special election would be held the second Tuesday in the following February.
Stark argued that the law should be thrown out and the votes for the remaining candidates on the ballot be counted. Barring a write-in effort, that would leave only DFLer Laurie Warner to receive votes.
"The election wouldn't be settled. It causes instability," Stark said of the delayed election scenario. She said it would leave the area without full representation in the Legislature.
Justice David Lillehaug interjected that it wouldn't be without precedent. He referenced the drawn-out battle between Republican Norm Coleman and Democrat Al Franken for a U.S. Senate seat, a case Lillehaug worked on as an attorney for the victorious Franken.
"In 2009, we didn't have a United States senator for months while the legal system worked its way through. Was that a constitutional violation of the right of the voters to have representation? This court held no," Lillehaug said.
A decision in the Barrett case is expected quickly.