Judge: Winner of CD2 race must be decided in November

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.
Evan Frost | MPR News and Submitted

Updated: 6:39 p.m.

A federal judge ruled Friday that the votes cast in November's election for Congress in Minnesota's 2nd District will count, even though a state law said the race should be delayed until a February special election.

The uncertainty arose because of the death of a third-party candidate. Democratic Rep. Angie Craig and a constituent filed a lawsuit saying that delaying the election until February would leave the seat unfilled at a crucial time. 

Republican candidate Tyler Kistner argued the state law should be followed and has filed an appeal.

In her 24-page decision issued two days after hearing arguments in the case, Judge Wilhelmina Wright ruled the November ballots must be counted. She favored a federal law on the timing of U.S. House elections, which can’t be moved except in very limited circumstances.

“Here, the State of Minnesota cannot invent a failure to elect or create an exigent circumstance by refusing to certify the vote totals for Minnesota’s Second Congressional District,” Wright wrote.

Had state law won out, the election would have been postponed until the middle of February, leaving the seat vacant for at least a month. Wright said that would create burdens on voters and leave the district without a voice.

“Defendants discredit the burden of voting twice. But the burden of voting twice is significant. And the practical reality of voting during a global pandemic compounds the burden for voters who wish to vote in person and must leave their homes in the winter to vote in a crowded polling location,” Wright wrote.

Craig said earlier in the day in an MPR News debate that voters would be harmed without a November election. “The district would be unrepresented for a very critical time in 2021,” she said, citing the possibility that health care legislation could be up for discussion if the U.S. Supreme Court knocks down the Affordable Care Act.

In a statement released on Twitter, Craig said the decision was “an enormous victory for the people of the Second District, who will still have an opportunity to make their voices heard in this election.”

Kistner said during the debate that states have the right to set their own election procedures.

“Just because the passing of a party candidate should not mean you continue to push forward,” Kistner said, invoking Democratic U.S. Sen. Paul Wellstone’s death just before the 2002 election.

Later, Kistner released a statement saying he had heard from voters who decided not to vote in the 2nd District race, based on statements from Secretary of State Steve Simon, and his campaign also canceled numerous “advertising buys, and refrained from sending out voter contact mailing.

"Because of the way this has played out, my campaign will be appealing Judge Wright's ruling to the 8th Circuit Court of Appeals to make sure that every Minnesotan has an opportunity to vote for the candidate of their choosing," Kistner said.

Secretary of State Simon said in a statement that the court decided the federal law preempted the state statute.

“Voters should continue to vote this race on their ballots,” Simon said, “and pursuant to the district court ruling, those votes will be counted.”

The election case hinged on what constitutes a vacancy and a failure to elect. Those are two key terms in the state and federal laws.

Legal Marijuana Now Party candidate Adam Weeks died on Sept. 21 and it was made public a few days later.

His death resulted in a vacancy in nomination for his party within 79 days of an election. Minnesota has a 2013 law that said it was grounds for postponing the entire election.

Craig and her lawyers argued that federal law trumps the state law here because there was not a vacancy in the office itself.

Federal law says U.S. House members are elected the first Tuesday after the first Monday in November.

The Secretary of State’s office, the defendant here, and Kistner’s lawyers said rescheduling the election would ensure that voters could choose among viable candidates. 

Now, the people who backed Weeks or his Legal Marijuana Party Now campaign have no recourse if they don’t support the other two.

There’s been confusion already. 

For the past couple of weeks voters have been advised that the November votes wouldn’t be counted so some might have skipped the contest. They still have time to request and cast a substitute ballot, as long as they do so by Oct. 20.

But the marijuana party is out of luck, unless the deceased Weeks gets the most votes. Then the seat would by definition result in a vacancy and a new election.

Read the court ruling here

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