Supreme Court boots GOP House incumbent

The DFL’s hopes of taking back the Republican-controlled House of Representatives just got a boost from the Minnesota Supreme Court.

In an order issued Thursday, Sept. 8, the high court sided with DFL activists who claimed that three-term GOP incumbent Rep. Bob Barrett is not a legal resident of the district he represents — 32B — and, therefore he is ineligible to run in November’s election.

However, the court also delivered a blow to the DFL by refusing to strike Barrett’s name from the ballot — a tantalizing prospect for Democrats keen to pick up Republican-leaning districts and eliminate the GOP’s current 12-seat majority because it would have left the district’s voters with just one choice, DFLer Laurie Warner.

Instead, the high court ordered that a special election be held on Feb. 14, as provided for under a provision of a never-before applied 2015 state law (Minn. Stat. 204B.13). Consequently, the GOP will have time to come up with a candidate to run in Barrett’s place.

In the four-page order signed by Chief Justice Lorie Gildea, the court didn’t delve into the legal issues raised by the case but said it was adopting the recommendations of the referee who presided over an evidentiary hearing last month.

In his report to the court, that referee, Ramsey County District Court Judge George Stephenson, concluded that Barrett’s claims of legal residency at the Taylors Falls home he rents from a political supporter were not credible.

The ruling comes just two days after the court took oral arguments in the case.

In a written statement, Warner, the DFL candidate, didn’t exactly jump for joy.

“The people of District 32B deserve a representative who is present in their community and working hard on their behalf,” she said. “The saddest part of this situation is that when the legislative session begins in January the people of District 32B will not have a state representative.”

In a separate statement, DFL Party Chair Ken Martin called the residency fight “just another example of Republican dysfunction as we head into the final weeks of this critical election.” Martin also noted that this isn’t the first time that questions have been raised about Barrett’s residency.

“You’d think that after Democrats filed a challenge on this very issue in 2014 Rep. Barrett and the GOP would have cleaned this up, but clearly they decided it was just too much of a bother,” he said.

At the oral argument, Virginia Stark, the Lindstrom attorney who represented the petitioners, asked the justices to both remove Barrett’s name from the ballot and to strike down the 2015 law that provides for a special election in instances when a major party candidate is deemed ineligible with less than 79 days before the election.

Stark argued that the law is unconstitutional, in part, she said, because it only applies to major party candidates “and the Republican Party doesn’t have a constitutional right” to have its candidate on the ballot.

Additionally, Stark asserted that a special election would have “significant consequence” for residents of District 32B because they would not be represented when the Legislature convenes on Jan. 3.

But, foreshadowing the court’s ruling, Stark ran into some stiff resistance with those arguments.

“Why is not having representation for a very brief time unconstitutional?” asked Associate Justice David Lillehaug, who noted that Minnesotans were without representation in the U.S. Senate for months in 2009 because of the lengthy recount in the race between Al Franken and Norm Coleman.

“Was that unconstitutional?” asked Lillehaug, who served as Franken’s campaign counsel during that recount.

Lillehaug also faulted Stark for not formally briefing the issue. He also said she should have given the attorney general notice of her constitutional challenge, as mandated by statute.

That detour into the constitutional territory prompted the court to inquire about the position of Secretary of State Steve Simon.  Nathan Hartshorn, the attorney for Simon’s office, told the justices that Simon has no views on the merits of the petition but believes the special election law to be constitutional.

R. Reid LeBeau, Barrett’s attorney and a shareholder at the St. Paul firm of Jacobson Magnuson Anderson & Halloran PC, argued at Tuesday’s hearing that the DFL petition should have been rejected because, he said, the activists waited too long to bring it.

To that, Stark responded that the petitioners simply waited until they had gathered sufficient evidence to present their case. In 2014, she noted, a similar complaint about Barrett’s residency failed after Stephenson concluded that there wasn’t enough evidence on the record.

“Mr. Barrett is trying to make this a case about politics,” Stark added. “[But] the only unclean hands in this case are those that signed the affidavit of candidacy and those who enabled the ruse.”

On a secondary front, LeBeau unsuccessfully sought to convince the court to eschew its usual deference to the fact finder and apply a de novo standard of review to the case.

But how can we make a decision on credibility, asked Chief Justice Lorie Gildea. Associate Justice David Stras pursued the point further.

“I don’t think this is great evidence,” said Stras, making reference to Stephenson’s conclusion that there is clear and convincing evidence Barrett is not a legal a resident 32B.  But is there precedent or other legal rationale for disregarding the referee’s findings, Stras asked.

LeBeau said he was unable to cite case law for that proposition. But he said Barrett’s evidence of residency is equal or greater to the evidence produced in previous instances in which the court declined to remove candidates from the ballot.

In his memorandum, LeBeau pointed out that there is just one instance in recent times in which the court took a candidate’s name off the ballot. In that 2006 case, the court removed Sue Ek, who was running as the Republican candidate for a House seat in St. Cloud, because of evidence she was still living in a St. Paul apartment.

Asked about Barrett’s admissions that his wife and children don’t stay with him at his sparsely-furnished rental home in Taylors Falls, LeBeau warned the justices that they would be going into “a very dangerous rabbit hole” if they requires that candidates have “stereotypical living arrangements.”

Apparently, that’s one rabbit hole the court is willing to descend.