In its lawsuit to get Republican Donald Trump removed from Minnesota ballots, the Democratic-Farmer-Labor Party has a high mountain to climb and little time to do it.
The DFL is asking the Minnesota Supreme Court to strip Trump’s name from ballots for the Nov. 8 election, potentially denying Republicans a chance to vote for their presidential nominee, because of the way the Republican Party filed for ballot access. That’s an action opponents and legal observers call extreme, drastic and undemocratic.
Meanwhile, the Minnesota secretary of state’s office told the court there are only days left to make any changes to the state’s ballots to properly conduct the election. It said it would need a final answer by Monday, Sept. 12. DFL Secretary of State Steve Simon’s office told the court that 1 million ballots have been printed for the election and at least five counties have already sent out absentee or overseas ballots.
The case brought by the DFL Party, if successful, could have national consequences if the court removes Trump from the presidential choices set before voters. Or the court could quickly toss the suit out with little lasting impact, other than a few days of distraction from other campaigning.
Which route the Supreme Court will go in its decision-making may start with the question of timing. And that’s a concern the court has already indicated it has.
In a Friday morning order, not only did the court require all parties to the suit to file responses to the suit by Friday afternoon — about 24 hours after the DFL first raised the legal issue — it asked the DFL to address why it couldn’t have filed its petition earlier and whether it had unreasonably delayed the filing.
In response, Democrats said they filed as quickly as they could and no one would be hurt by the delay.
“(Ken Martin, the DFL Party chair) could not, in good faith, file the petition without first conducting necessary factual and legal investigation,” the DFL said in its response to the court. Besides, it says: “The election is two months away.”
The Minnesota Republican Party, in a response that appeared almost an hour after the court’s 4:30 p.m. deadline, said the suit is baseless, came too late, and, if successful, would have an “irreparable” effect. The candidates, the Republican Party and the voters themselves would be harmed if Trump’s and running mate Mike Pence’s names were stricken, the party argued.
“It would be an incredible intrusion into the democratic process for this court to accept the (DFL’s) invitation to convert what was — at most — a technical defeat … into a basis for effectively awarding the state of Minnesota to Hillary Clinton,” the Republican response said.
CHANCE OF SUCCESS?
Election law experts agreed that the DFL’s request is a tall one.
Courts tend to weigh in favor of giving voters meaningful choices in elections, despite odd circumstances, they said.
“Voters should not be deprived of that choice because a political party made a technical violation of the rules,” said Rick Hasen, election law professor at the University of California, Irvine. In many cases, courts agree, he said, adding that he couldn’t imagine the Minnesota Supreme Court denying Republicans the chance to vote for their nominee.
Similar cases have come up in other states where a presidential candidate’s ballot status was challenged due to technicalities involving the filing of their electors. Among the candidates who won legal battles to stay on ballots despite issues with their presidential electors: Lyndon Johnson in Iowa in 1964, George H.W. Bush and Michael Dukakis in Indiana in 1988, John McCain and Barack Obama in Texas in 2008, and this year with Green Party candidate Jill Stein in Arizona.
“Every single time, it didn’t matter,” said Richard Winger, the editor of the 21-year-old Ballot Access News. “They are always excused, and when it goes to court, they always win.”
Harry Niska, a Minnesota attorney and Republican activist, also said the court may have an issue with the timeliness of the DFL’s filing. He said he expects the court will deny the DFL’s request to remove Trump from the ballot because that is too drastic a solution or because “the petition was filed unreasonably late or unreasonably close to the time that all of the ballots need to be printed.”
AT ISSUE
The issue that the DFL brought to court has to do with the way the Republican Party selected the backups for its presidential electors. Electors are the individuals who actually cast Minnesota’s 10 Electoral College votes.
State law requires major political parties — the DFL and the Republican Party in Minnesota — to nominate presidential electors and alternates “by delegate conventions called and held under the supervision of the respective state central committees of the parties of this state.” Much of the law is longstanding, but the requirement to name alternate electors became law last year.
Keith Downey, the chair of the state Republican Party, has said the party properly nominated its electors at its May convention but did not find out until early August that it also needed to nominate alternates. So, a few days before the deadline to get Trump on Minnesota ballots, the party’s executive committee selected 10 people to serve as alternates. The party’s legal filing said that is in keeping with the law, because the convention delegates empowered the executive committee to take such actions.
But the DFL believes that the Republicans violated the letter of the law and that the proper remedy is to remove Trump from the ballot.
Martin, the DFL Party chair, said Thursday that it is “incumbent upon political parties to follow the rules binding our elections and in this instance it does not appear that the Minnesota Republican Party did so.”
David Montgomery contributed to this report.