"All that is old and already formed can continue to live only if it allows within itself the conditions of a new beginning."
In Minnesota, a Victory for Open Democracy
Posted 8:15 p.m., Sept. 27, 2004
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The Minnesota State Supreme Court made the right choice today when it ruled that two dozen Independence Party candidates must be placed back on the Nov. 2 general election ballot, after they were summarily ousted because of an obscure election law.
The justices didn't detail the reasons for their decision, which they reached a mere hour after the wrap up of oral arguments. But the fact that they reached a final ruling so quickly speaks volumes.
Based on written submissions and the arguments of the parties, we conclude that [the law] cannot constitutionally be applied to deprive Independence Party candidates a place on the general election ballot.
-- Minnesota Supreme Court ruling,
Sept. 27, 2004Independence Party attorney Mike Padden, of course, argued for the decision that the judges ultimately handed down. Somewhat surprisingly, so did Attorney General Mike Hatch, who had gone to court ostensibly to defend the decision by Secretary of State Mary Kiffmeyer to knock IP candidates off the ballot.
That's an interesting stance on the part of Hatch, who initially backed up Kiffmeyer on her decision, which she based on the fact that no IP candidate had managed to secure 10 percent of the votes in their own districts that IP gubernatorial candidate Tim Penny had received in 2002, the last statewide general election.
In doing so, Kiffmeyer invoked an obscure 1939 law that appears designed to thwart third-party challenges. It was supposedly rescinded eight years ago, though Kiffmeyer claimed it remained in force.
Hatch had publicly expressed that he felt troubled by the candidates' lack of recourse; they couldn't petition to get back on the ballot without suing because the petition period ended with the balloting in the primary election. And Kiffmeyer issued her opinion that the IP had failed to make the cut almost immediately after the primary returns were received.
Hatch had even filed in his brief to the court on Thursday that the law is misleading and produces "perverse results," according to news reports. He pointed to one case where a Green Party received just 13 votes in one district to the IP candidate's 40 votes. Because the benchmark was lower--Green Party candidate Ken Pentel fared far worse than Penny in the 2002 general election--the Green Party candidate was allowed onto the November ballot while the IP candidate was bumped.
However, Hatch did not request the law be quashed in his brief, instead citing the state's right to maintain "orderly" elections.
He changed his tune while standing before the Supreme Court, however.
"We believe that the statute ought to be declared unconstitutional rather than go forward, but do it narrowly. ... It is vital above all things in a democracy that the electoral process be understood and we have confidence in it."
-- Minnesota Attorney General Mike Hatch,
Sept. 27, 2004The ruling is fortuitous for Hennepin and Washington counties, which already had declared that there was no time to wait for today's Supreme Court decision. Election officials last week decided to go ahead and print the names of Independence Party candidates on the ballot. One wonders whether other counties made the opposite decision and IP candidates elsewhere lost out on the chance to be included in ballots. I'll try to find an answer to that question.
It's a moot point now, but there is yet another issue that I never saw raised anywhere else but that was mentioned to me in a conversation with self-professed IP "hanger-on" Peter Hutchinson: the election law statutes were schizophrenic before today's court ruling. Because of Penny's performance in the 2002 election, the Independence Party retained its standing as a "major party" under state law, and thus it qualifies for state funding. But the unrelated 10-percent rule left the party unqualified to appear on the ballot, despite its major-party status. That is insane.
It's no longer an issue. Fine. But when the Legislature gets back to work next January, it will be incumbent on them to fix these laws. When they do, they should err on the side of fair and open ballot access to candidates--not go on tilting the system to maintain their dominance--to the tremendous detriment of Minnesota's voters.
-- Kevin Featherly
