Appeals court rules 2nd District race should proceed

'I voted'
Voters in Minnesota's 2nd Congressional District will be allowed to cast votes for candidates for the U.S. House of Representatives in the general election under an Appeals Court ruling
Derek Montgomery for MPR News File

A federal appeals court declined Friday to suspend Minnesota’s 2nd Congressional District election, keeping it on course for a November outcome.

In doing so, the 8th Circuit Court of Appeals panel left intact a judge’s ruling this month to let the race go on despite the death of one of three candidates on the ballot. The death of Legal Marijuana Now Party nominee Adam Weeks put federal law around congressional election timing in conflict with a state law that postponed an election in such a circumstance.

Republican Tyler Kistner had asked the appeals panel to defer to the state law, which would result in a February special election. Democratic Rep. Angie Craig argued that federal law should prevail in this instance.

Kistner said in a statement he would ask the U.S. Supreme Court to step in.

“As a Marine, I took an oath to protect and defend our constitutional rights, regardless of party affiliation and that fight never stops,” Kistner said. “I will continue the fight to ensure every voter in the Second District has a chance to have their vote and voice heard. After all, Minnesota has a history of electing third-party candidates to statewide office.”

Craig said a November election will ensure the seat isn’t vacant when a new Congress convenes in January.

“The courts have spoken – now it is time for the people of Minnesota’s Second Congressional District to decide,” she said in her own written statement.

In the three-judge panel’s ruling, Judge Steven Colloton wrote that Kistner was unlikely to win the case on its merits.

“Even if the death of a Republican or Democratic-Farmer-Labor candidate could qualify as an exigent circumstance that would allow the state to cancel an election and trigger a vacancy in office, we think it unlikely that the rationale would extend to the death of a third-party candidate from a party with the modest electoral strength exhibited to date by the Legal Marijuana Now Party in Minnesota,” Colloton wrote.

The case isn’t over. The Appeals Court ordered it be put on the calendar for an expedited full hearing. But with 11 days left before the election, time for another sudden shift is running short.

Colloton wrote in the opinion that some voters might have skipped the race on their early ballots due to confusion around whether the race would go on. Voters had until Oct. 20 to swap out their ballots in Minnesota.

“The potential that some voters nonetheless forwent a vote for representative due to the (secretary of state’s) interim announcement is not sufficient to justify cancelling the election if federal law otherwise would not permit that step,” he wrote. “That a short period of uncertainty affected campaign fundraising and tactical decisions by the candidates also does not justify a stay of the injunction without a likelihood of success on the merits.”

The case has attracted considerable attention beyond Minnesota. The U.S. House of Representatives submitted an amicus brief that argued for an on-time election. Lawyers for the House wrote that there is value to having members of the chamber elected on the same day.

“Nothing makes it physically impossible to hold the election for this House seat on Election Day. Rather, Minnesota has made a policy choice that, in certain circumstances, an election should be postponed where a candidate has died,” the brief made public Friday reads in part. “But with respect to federal elections, the choice of an election date has been made by Congress, and Congress has not adopted Minnesota’s approach.”

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