"All that is old and already formed can continue to live only if it allows within itself the conditions of a new beginning."
A Sham Election Law's Pure Pedigree
Posted 9:23 p.m., Sept. 23, 2004
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There's a delicious revelation in Thursday's Star Tribune. Apparently, the law cited by Minnesota Secretary of State Mary Kiffmeyer and Attorney General Mike Hatch when they booted the Independence Party off the Nov. 2 election ballot has a pure pedigree.
The "10-percent rule" apparently was the product of a Depression-era bid by state Republicans to ensure that what was then a successful Minnesota third party, the Farmer-Labor Party, would never again be able to compete on the same footing as Democrats and Republicans. Lovely. Those folks would be happy to know that, generations later, their sham of a law is still serving its intended purpose.
The law was repealed in 1996--though Kiffmeyer and Hatch claim that a peripherally related U.S. Supreme Court decision somehow tossed it back onto the books. It is a real Rube Goldberg contraption: Under it, a party's full slate of candidates advance onto the general election ballot as long as any one them, in a state primary, receives 10 percent of the average vote total collected in their district by the party's statewide candidates in the preceding general election. If no candidate reaches that 10 percent, none of the party's candidates can be included on the ballot.
It made sense to repeal this screwy law. It penalizes success. For instance, Tim Penny ran for governor in 2002, and earned 15.9 percent of the statewide vote in 2002. Now, two years later during a virtually ignored off-year primary race, an Independence Party candidate for state House were expected follow on the heels of that serious, competitive, high-profile gubernatorial race and reel in 10 percent of Penny's numbers in their district? It is absolutely absurd.
It's a fair question to ask why Kiffemeyer would choose to haul out this blue law now, particularly when she neglected to include it in her 43-page candidate handbook, which purportedly tells prospective lawmakers everything they need to know in order to legally run for office. She has chided Independence Party officials for not understanding the law. But shouldn't candidates have a right to trust that Kiffmeyer would be complete in detailing the rules candidates are expected to follow? If she considered the law to be in force, why didn't she include it in her handbook?
Further, if as she has claimed she merely was enforcing the law as is her duty and as she always has enforced it, why didn't she apply this law in 2000, the off-year election held when Gov. Ventura was still in office? One can easily speculate that major party officials didn't want to hear Jesse's roar if they had tried to kick his party's candidates off the slate during that year.
At a minimum, Kiffmeyer has been derelict in her duties as our chief election official. And Hatch, who has back-pedaled in recent days after initially assuring IP Chairman Jim Moore that his hands were tied and that there was nothing to be done, now says maybe it is dumb law after all. His role in this episode can't be ignored either, even if he is faster on his feet politically than the hyper-partisan Kiffmeyer.
Incidentally, this law could very easily have had the same impact on the Green Party, to name just one other example. But because the Green Party actually underperformed during the 2002 gubernatorial race, the threshold its candidates had to meet in this month's primary was much lower than the IP's requirements, so the Greens squeaked onto the ballot. What a crazy law.
Fortunately, the Minnesota Supreme Court has agreed to an expedited hearing of the Independence Party's complaint. It took briefs and rebuttals through today, and will hear arguments on Monday.
The court should--and the people I talk to in the party think it will--rule that this law has no place on the books and justices will order IP candidates back onto the ballot. Such a decision would be in keeping with the court's tendency to favor fair and open ballot access, and its penchant for allowing voters to decide themselves for whom they will exercise their right to vote, without interference from the dominant political parties.
It is possible the court might side with the secretary of state by saying that, indeed, the law is on the books, is constitutional and Kiffmeyer is within her rights to enforce it. That would be a woeful mistake, but even then, it's hard to imagine justices wouldn't strongly urge the state Legislature to revisit the issue and rewrite the rules with more adherence to common sense.
Special session, anyone?
-- Kevin Featherly
