http://www.minnpost.com/ericblackblog/2009/03/03/7116/more_fun_with_minnesota_election_laws By Eric Black | Published Tue, Mar 3 2009 3:00 pm
I mentioned in this morning's post (thanks, by the way, for the excellent discussion thread) that Minnesota does have laws on the books mandating a special election in case of a Senate vacancy. Still true, but upon a careful reading, under the expert assistance of law Professor Guy Uriel-Charles, an election-law specialist of the statute that defines vacancies, it appears that the existing law holds little potential for a solution to the current confusion. Basically, it's because the law defines a vacancy as something that comes about through eight specific ways, and none of them seem to describe any likely outcome of our current dilemma. Read it for yourself, really, it's very straightforward. The eight ways to get a vacancy are:
(1) the death of the incumbent;
(2) the incumbent's resignation;
(3) the incumbent's removal;
(4) the incumbent's ceasing to be an inhabitant of the state;
(5) the incumbent's conviction of any infamous crime, or of any offense involving a violation of the official oath;
(6) the incumbent's refusal or neglect to take the oath of office;
(7) the decision of a competent tribunal declaring the incumbent's election or appointment void;
(8) the death of the person elected or appointed to fill a vacancy, or for a full term, before the person qualifies, or before the time when by law the person should enter upon the duties of the office, in which case the vacancy shall be deemed to take place at the time when the term of office would have begun had the person lived.
Note the following:
The law does not provide for a situation in which the election officials and the courts are unable to decide who won the election.
Vacancy categories 1-7 all require there to first be an incumbent. In the current situation, there is no incumbent. Category 8 requires there to be a person elected or appointed to the office who dies before taking office. In the current case, there is no such person.
Perhaps you are taking a second look at reason No. 7. It seems at first glance to suggest, consistent with Team Coleman's argument, that the three-judge election-contest panel could decide to throw out the election (which would create a vacancy, which would trigger a temporary appointment, followed by a special election in November to fill the remainder of the term). To tell you the truth, I stuck on that one myself, which is why I didn't dismiss this possibility in the previous post.
But talking it over with Professor Charles, he pointed out two things: Even No. 7 presumes that an incumbent has already been elected. And the reference to a "competent tribunal" means a body that has the authority to void an election.
The contest panel has authority to do only one thing: And that is to decide "which party to the contest received the highest number of votes legally cast at the election and is therefore entitled to receive the certificate of election."
This is exactly the place that state law could have given the contest panel authority to void the election if, for example, it felt it could not ascertain which party got the most legally cast votes. But the law didn't do so.
Charles believes the idea of a new election under different circumstances would not be far-fetched. But in this case, because the state law provides such a clear limit on the power of the contest panel, and because we are dealing here with a Senate seat and the Constitution invests the Senate itself with final authority to judge the election, he believes it is highly unlkely that the three judges will void the result or call for a new election.