The Minnesota Supreme Court cited the “paramount interests of voters” Wednesday as the rationale for its decision to allow Democrats to replace Rep. Kerry Gauthier’s name on ballots for the House District 7B election last month.
Six weeks before the election, the court ruled that Gauthier, DFL-Duluth, could pull his name from the ballot in the wake of a rest stop sex scandal and that the party could replace his name with its new endorsed candidate, assistant Duluth fire chief Erik Simonson. At the time, the court offered no explanation for the ruling.
In its opinion Wednesday, the court said it allowed the change because it served “the paramount interests of voters, who are entitled to a ballot that accurately identifies the candidates actually running for office.”
The court found that St. Louis County Auditor Don Dicklich and Minnesota Secretary of State Mark Ritchie erred in rejecting both Gauthier’s affidavit of withdrawal from the race and Simonson’s affidavit of candidacy. Simonson and DFL Chairman Ken Martin challenged that decision, resulting in the Supreme Court ruling on Sept. 25.
Simonson went on to win the election in November, handily defeating Travis Silvers, the Republican nominee, and Duluth City Councilor Jay Fosle, who mounted a write-in campaign after the court rejected his attempt to put his name on the ballot. No write-in candidate has ever been elected to the Minnesota Legislature, and Fosle said his inability to win a place on the ballot “absolutely made a difference” in the election’s outcome.
Simonson did not respond to messages left on his cell phone Wednesday.
The Supreme Court made a distinction between Fosle’s and Simonson’s requests to have their names appear on the ballot. It noted that the DFL selected Simonson to run as its endorsed candidate after a special nominating convention organized after Gauthier announced that he was withdrawing.
Fosle lacked any endorsement.
Fosle argued that if Simonson’s name was to be printed on the ballot, there should be a spot for him, too, and asked in a petition filed Sept. 28 to be identified as “either an Independent or with no party affiliation.”
But the court wrote in its decision that “Fosle presents no evidence that he has been endorsed by the Independence Party, which has endorsed candidates in several other legislative races during this election cycle.” It concluded that listing him as an “Independent” would confuse and possibly mislead voters.
As for Fosle possibly running with no party affiliation, the court cited state statute requiring “that candidates for partisan office who do not seek the nomination of a major party be nominated by petition.” That petition — signed either by 10 percent of eligible voters or 500 residents of the district —would have needed to be submitted by June for a November election.
Fosle said Wednesday he is still considering whether to pursue further legal recourse. He said he is content to continue to serve on the Duluth City Council but has been encouraged by others to file a lawsuit. Fosle described his motivation for considering a suit not as a case of “sour grapes” but as a matter of fighting for principles.
“I’d hate to see anyone else have to go through the BS I did,” he said.
Ritchie issued a statement thanking the Supreme Court for issuing its decision before the legislative session.
“I expect to discuss the decision with local election officials, the Legislature and Governor in (an) effort to clarify elections law pertaining to the withdrawal and replacement of legislative candidates,” Ritchie said.
Dicklich said late changes to the ballot come with additional costs and risks. He pointed out that St. Louis County paid $22,000 to reprint ballots for House District 7B. And Dicklich said he waited until the last moment to proceed with printing the ballots this year, as he waited for the court to rule on Fosle’s request to be listed, as well.
The court handed down its decision not to include Fosle’s name on Oct. 10.
That was too close for comfort, in Dicklich’s eyes.
He said the ruling also seems to benefit candidates endorsed by parties over other late entrants.
“This would be the new reality only for major-party candidates,” he said. “I think a lot of people will ask if the deck is stacked in someone’s favor.”
DFL Chairman Martin disagreed with Dicklich’s suggestion that the Supreme Court justices’ decision somehow favored large parties above others.
“They looked at statutes and very clearly said it was within our prerogative and our power as a state party to nominate a replacement candidate in the event that our nominee would withdraw from the ballot,” he said. “They affirmed the letter of the law.”
If anything, Martin said, the court came down on the side of the voting public.
“We knew that Kerry Gauthier had withdrawn his name and wasn’t able to serve anymore in the Legislature for a variety of reasons. At the end of the day, looking at this ruling confirms the belief we’ve held all along that it would be unfair to the voters of 7B if they weren’t allowed to pick between the nominees of the parties,” Martin said.