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Embattled DFL Rep. Kerry Gauthier shocked nearly everyone in the Minnesota political firmament on Wednesday morning when he announced that he plans to seek reelection to his seat in the state House of Representatives. The announcement came one week after it was publicly reported that Gauthier had been investigated by Duluth police following an incident in which he used a Craigslist ad to meet and have oral sex with a 17-year-old male at an area rest stop.

Gauthier still running; DFL reeling

Rep. Kerry Gauthier

Embattled DFL Rep. Kerry Gauthier shocked nearly everyone in the Minnesota political firmament on Wednesday morning when he announced that he plans to seek reelection to his seat in the state House of Representatives. The announcement came one week after it was publicly reported that Gauthier had been investigated by Duluth police following an incident in which he used a Craigslist ad to meet and have oral sex with a 17-year-old male at an area rest stop.

Democrats responded with anger and incredulousness to the report of Gauthier’s decision. State Sen. Roger Reinert, whose district includes Gauthier’s House district, told the Associated Press that Gauthier should not attend the upcoming special session of the Legislature to provide flood relief for Duluth and nearby cities affected by flash flooding in June.

One House DFL member who asked not to be identified went further: “If I sat next to him on the House floor, I would not take my seat [during the special session], because I would not want to be photographed with him.”

Following Gauthier’s statement, DFL State Party Chair Ken Martin issued an immediate rebuke:  “He should exit the race immediately,” Martin wrote. “He will receive no assistance from the state DFL Party, and we are strongly encouraging the local party leaders to rescind his endorsement.”

House Minority Leader Paul Thissen quickly followed suit, issuing this brief statement: “Rep. Gauthier’s conduct last month was clearly beneath what’s expected of an elected official.  I do not support his decision to continue his re-election effort and the House DFL Caucus will not be supporting his campaign.”

At a press conference regarding the Legislature’s upcoming special session, Gov. Mark Dayton said of Gauthier’s staying in the race, “I think it’s a terrible decision.”

As this issue of Capitol Report went to press, it remained unclear whether his DFL colleagues in the House and at the state DFL Party still possessed any leverage in efforts to get Gauthier to pull out. Two would-be candidates have already said they plan to run for the seat, and others have expressed interest in seeking the DFL endorsement if, as expected, the local party unit rescinds its endorsement of Gauthier.

But thanks to the vagaries of Minnesota election law, it appears that even that gesture would not suffice to remove Gauthier’s name from the ballot, or to add any other names. As a result, any DFL campaign apart from Gauthier’s would have to be waged as a write-in effort.

“It’s a complete mess,” said area blogger and DFL activist Aaron Brown. “It elevates the chances of the unknown Republican sneaking out of the field to win; it creates an awkward divide in the local DFL party; it probably has a negative effect on the DFL index in the Duluth area. Just so many things.

“You never want an election to be a referendum on whether a sex scandal was OK or not,” Brown added, “and that’s what this is. That’s not good for anyone.”

Gauthier’s announcement capped a strange week in which the freshman legislator remained mute as the growing maelstrom whirled around him.

A swift Republican response

When news of Gauthier’s sexual encounter with the youth — who has not been named because he is a minor — became public last Thursday, the outcry from Republicans was predictably swift. Minnesota House Speaker Kurt Zellers led the charge, releasing a statement on Friday that called Gauthier unfit to serve and saying the freshman Democrat should resign from office.

Democrats were blindsided by the news. Gauthier, 56, had served one year on the Duluth City Council before his election to the Legislature in 2010, and he had a 36-year history as a volunteer and local leader in DFL circles. Prior to the incident, Gauthier was known as an advocate for unions and at-risk youth, a single man who spent his spare time traveling and walking his three dogs. The tale of his alleged behavior shocked even those who knew him well.

DFL leaders waited several days after the news broke before asking Gauthier to call off his reelection bid for the state House.  Daniel Fanning, a Duluth-area DFLer who is considering a write-in campaign for the seat, said his first concern was for Gauthier’s health. But he added that Gauthier’s refusal to comment publicly in the days following his release from the hospital was only exacerbating the situation.

“It’s like, OK, now what?” Fanning said on Tuesday. “And nobody’s heard from Kerry.”

Prior to Gauthier’s Wednesday statement, several sources had indicated that he was actively entertaining the possibility of continuing his reelection bid. Local activists with access to Gauthier’s Facebook page, which is private, say he changed his profile picture late last week to a green Paul Wellstone button bearing the words “Stand Up Keep Fighting.” They added that he received encouragement from a small group of people on the social networking site. Some commenters said that he should run again and asked where they could get lawn signs to support him. One person wrote, “Don’t let the b—— [sic] drag you down!”

The situation represents a nightmare for the coordinated DFL legislative campaign. The episode has drawn national and international attention, including coverage in the Huffington Post, the Daily Mail (a London tabloid), and Rush Limbaugh’s daily syndicated radio show. Locally, Gauthier’s actions have thrown one of the safest DFL House seats up for grabs in a year when control of the Legislature is at stake.

The incident

Gauthier’s trouble began just before 11:00 p.m. on Sunday, July 22, at a rest stop in the Thompson Hill area of southwest Duluth. State Patrol officers were looking for a young man who had been seen urinating in a rest area parking lot when they came across Gauthier, whom they described as a startled man in khaki shorts and a short-sleeve shirt. When Gauthier thrust a hand into his pocket, apparently reaching for his cell phone, a patrolman aimed his flashlight at his pockets to check for any sign of a weapon. The light revealed that Gauthier’s zipper was down. Trooper Scott Parker told Gauthier to zip up and leave, noting in his report that “in the late evening hours walking that path, I have come across men having sex and watching others have sex.”

Minutes later, the troopers found the young man suspected of urinating in the parking lot. A series of pointed questions to the teenager filled in the narrative of the events. The 17-year-old claimed he had answered an ad seeking oral sex on Craigslist, and that the two had engaged in consensual sex acts in the woods next to the rest stop. The teenager also told police that he had lied to Gauthier about his age, claiming to be 18, and that no money had changed hands.

The incident was referred to the Duluth Police Department, and an officer phoned Gauthier about the incident on July 31. Gauthier reportedly denied the allegations at first, saying he had only stopped that night to use the restroom. When pressed, Gauthier admitted to the same version of events laid out by the teenager. The police passed along their findings to the St. Louis County Attorney’s Office, which weighed whether or not to press charges against Gauthier.

As he awaited that decision, Gauthier continued his work as a legislator. Indeed, with the pending special session to handle disaster relief for Duluth and surrounding areas, the first-term representative seemed primed to take on an increased role in advocating for his district.

Gauthier’s image switched from public advocate to pariah with a front-page story in the August 15 edition of the Duluth News Tribune, which disclosed the police investigation stemming from the rest stop incident. In his only comments on the situation to date, Gauthier told the News Tribune, “I think it’s a private matter and I don’t need to talk about it.”

On the same day the story was published, Gauthier was admitted to a Duluth hospital. Subsequent news accounts filled in the details of the incident and its aftermath, including the County Attorney’s decision not to charge Gauthier with a crime.

Political leaders respond

Republicans seized on the issue in the days that followed. On Friday, House Majority Leader Kurt Zellers released a statement calling on Gauthier to resign immediately.

“While no charges have been filed,” Zellers said, “the reported incident with a minor and subsequent lying to police show Representative Gauthier to be unfit to continue serving his constituents in Duluth.”

Later that night, in an appearance on TPT “Almanac,” state GOP chair Pat Shortridge hammered DFL chair Martin for the party’s inaction.

“I think both sides have to say certain things are wrong,” Shortridge said. “If you’re having sex in a public place with a 17-year-old who you solicited on Craigslist, you’re not fit to serve in the Legislature, and you need to go.”

The line of attack left Martin on his heels, repeatedly conceding that Gauthier’s actions were “wrong,” but saying the party needed to hear from Gauthier, who was at that point still in the hospital. That didn’t pass muster with Shortridge, who criticized Martin and Thissen for failing to issue an immediate call for Gauthier’s resignation.

On Monday DFL leaders took action, calling on Gauthier to step aside but stopping short of asking him to resign. In a pair of statements released within an hour of each other, Thissen and Martin both made public appeals for Gauthier not to seek reelection to the House.

Thissen said he had driven to Duluth to meet with Gauthier after his release from the hospital. “I shared with him that his friends and colleagues are concerned for him and his health,” Thissen said, “but also that we were all very disappointed in his behavior.”

Martin’s statement went even further. “No one in our party condones what [Gauthier] did,” Martin said, “nor will we defend him in this matter.”

During their meeting, Thissen urged Gauthier to discontinue his election campaign. Other local DFL party members, including close friends of Gauthier’s, likewise encouraged him to get out of the race.

Legal and political complications

The days following the first news reports were marked in part by a scramble to find a candidate to replace Gauthier. The main factor complicating that scenario was an obscure provision in state law that allows legislative candidates to remove their names from the fall ballot only for a brief period of time following the candidate-filing deadline in June. According to the law, only constitutional officer candidates can drop out after that point, a process that involves filing an affidavit of withdrawal.

One Minnesota election law expert says the law was changed in the late 1980s to eliminate the occasional practice of substituting new candidates late in legislative campaigns if an endorsed candidate proved unpopular with voters in his or her district. The law was amended in 1991 to add the exception for constitutional office races; that came in the wake of a 1990 gubernatorial campaign in which Republican nominee Jon Grunseth had to pull out of the race nine days before the election after it was revealed that he went skinny-dipping in his pool with several teenage girls almost 10 years earlier.

Before Gauthier announced his intention to continue, Thissen had told reporters Tuesday that he was still hopeful that it would be possible to get Gauthier’s name off the ballot. “It seems to me that there’s a statute that’s pretty clear that creates a mechanism for doing so,” MPR quoted him as saying.

But the Minnesota secretary of state’s office took  a firm stance in favor of the letter of the law. “After the withdrawal period has ended, which is two days after [the] filing [deadline], there is not a process for withdrawing from the race,” said John Kavanagh, a spokesman for the Secretary of State’s office.

Republicans are looking at a different route. According to House Republican spokeswoman Jodi Boyne, “There are certainly people [in the GOP caucus] who are questioning if an ethics complaint is appropriate in this circumstance.”

Candidates emerge  

Despite Gauthier’s intention to remain in the race, the DFL game plan is still likely to center on a write-in campaign for the seat. One course being weighed by Democrats would involve action by the local party unit to revoke Gauthier’s endorsement and select a new candidate for the party to rally around, followed by an aggressive public effort to get voters focused on writing in that candidate’s on November 6.  One veteran DFLer pointed out that the party could distribute sample ballots that voters could carry with them to the polls.

As it now stands, the only two names on the general election ballot are those of Gauthier and Republican-endorsed candidate Travis Silvers. Silvers, who says he is an independent construction contractor, is a relative unknown in west Duluth, even among Republicans, despite having run against Gauthier in 2010, when he claimed 22 percent of the vote. Silvers’ campaign Facebook page is terse; under an “about me” section, Silvers writes only, “I run my own business and I love Jesus.”

“The Republican was going to get 35 to 40 percent of the vote. That’s now the frontrunner in this race,” Brown said. “This Republican is not even the most notable Republican in west Duluth. He’s not a guy who was on anyone’s radar as a major threat before now.”

But by many accounts, Silvers could be competing for votes with write-in candidate Jay Fosle, a Duluth City Councilor. Fosle, who is running his write-in campaign as an independent, defeated a well-known incumbent DFLer, Russell Stover, for his seat on the council. Fosleis now part of the conservative bloc in the chamber, according to local DFLers. He often took positions opposite those of Gauthier on city issues when they served together on the council.

“I certainly do not want Jay Fosle to represent me in the Legislature,” said Sarah Lewerenz, a longtime DFL activist from Duluth. “I think he’s basically a conservative Republican. That’s the way he’s voted on the council.”

Fosle was the first to announce an independent write-in candidacy, followed shortly afterward by Duluth assistant fire chief Erik Simonson. Simonson has never run for public office, but has served as a DFL delegate at the precinct level and has been elected to serve as local president of the International Association of Firefighters Local 101. Citing a background in labor and collective bargaining, Simonson seemed poised to pursue the support of unions that had previously endorsed Gauthier and donated generously to his campaigns. Simonson has the backing of Duluth Rep. Tom Huntley.

Lingering just outside the small pool of declared write-in candidates is Daniel Fanning, who ran a brief, unsuccessful campaign in the 8th District DFL congressional primary. Fanning, who served as U.S. Sen. Al Franken’s district director before quitting to run for Congress, is now the communications director in Duluth Mayor Don Ness’ office.

“I think if the DFL can quickly unite behind one candidate, we should be able to hold this seat,” Fanning said Tuesday. “Having said that, we need to restore the trust that we’ve lost from the district. Clearly, [Gauthier] has lost the public’s trust, and we need somebody to step in.”

Initially there was chatter from DFLers on the Range about recruiting former longtime DFL Rep. Mike Jaros to run for his old seat again, using his name recognition in the area to execute a successful DFL write-in campaign. But Jaros says he has no intention of joining the mix.

“I did my time, I think it was about long as one does — or about as long as one does a life sentence in the Stillwater prison,” Jaros said. “I just wanted to get out. I wouldn’t consider ruining my beautiful fall in Duluth and sitting in St. Paul all winter. Can you imagine anything worse?”

Senate District 7 DFL Chairman John Schwetman said his executive committee happened to hold a regularly scheduled meeting on the night of Wednesday, August 15, as the first reports of Gauthier’s encounter with police were emerging. At the time, they knew nothing about the particulars of the case. Aware that more details were soon to follow, the committee voted to give Schwetman power to call an emergency meeting to address the situation.

Prior to Gauthier’s announcement, Schwetman said the process of rescinding the party’s endorsement and giving it to someone else would originate at the district level if they chose to go that route. Schwetman acknowledged the possibility that multiple Democratic write-in candidates could split the vote and deliver the seat to the GOP.

“It’s a concern,” he said, “but it’s not something that [the SD 7 executive committee] has really had a chance to discuss.” Schwetman could not be immediately reached following Gauthier’s Wednesday announcement that he means to stay in.

Broader implications for November

University of Minnesota political sciences professor Larry Jacobs says that aside from throwing the fate of District 7B into jeopardy for Democrats, the saga could muddle the DFL’s entire campaign message for the 2012 election. Democrats had been the presumed beneficiaries of a scandal involving former Republican Senate Majority Leader Amy Koch, who resigned last December after it was revealed to some senators that she was having an affair with her executive assistant Michael Brodkorb.  Gauthier’s troubles stand to confound that campaign narrative, Jacobs said.

“This story dulls or overtakes some of the controversy over the Amy Koch scandal,” Jacobs said. “It’s more recent and closer to Election Day; voters tend to remember what they just heard. The whole Koch scandal is already in the yearbook. This could be fresh and really interfere with [Democrats] framing the election as a choice between a very right-wing Republican Party and what [Democrats] see as their more reasonable approach.”

A partisan voter index compiled by watchdog group Common Cause Minnesota puts House District 7B at DFL +39. Gauthier won his seat in 2010 with 66 percent of the vote. In addition to Silvers’ 22 percent showing, independent candidate Tony Salls also tallied 11 percent of the vote.

“Under normal circumstances, a Republican just simply couldn’t win up there, but in this setting it’s possible,” said University of Duluth political science professor Wy Spano. “All you need to do to win is have a plurality of the vote. If it’s 60-40 [percent district favoring Democrats] and you split up that 60 three ways…that’s the situation that makes the DFL caucus and the DFL Party kind of crazy, because you depend on a seat like that as a sure winner. And all of a sudden it’s gone.”

The incident could also complicate the larger, DFL-supported campaign against a proposed constitutional amendment to prohibit same-sex marriage. Spano notes that Frank Schubert, the operative who has organized the pro-amendment campaigns across the nation and is now working for pro-amendment campaign Minnesota for Marriage, has a reputation for “tough” campaigns that capitalize on “just about anything they can.”
“I just have to believe that they’ll look at this and somehow try to damage the marriage amendment [opposition],” Spano said.

On Monday Duluth Sen. Roger Reinert, whose district includes Gauthier’s House district, likewise noted the potential impact of the scandal on the marriage amendment debate.

Fanning echoed that assessment. “This is affecting more than just this one legislative seat,” Fanning said. “This is affecting other races. This is affecting the marriage amendment debate. It’s an unfortunate distraction at a time when we don’t need this.”

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