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Erlandson v. Kiffmeyer

April 17, 2003



1. After the creation of a vacancy on the ballot by the death of a major party candidate for United States Senator less than 16 days before the general election, Minn. Stat. § 204B.41 (2002) properly requires that absentee ballots returned to election officials before a supplemental ballot became available must be counted as if no vacancy had occurred, unless a replacement absentee ballot is received from the voter before the applicable deadline.

2. In the circumstances of this case and in the absence of any rational justification proffered by the state, the prohibition in Minn. Stat. § 204B.41 against mailing supplemental ballots to voters to whom regular absentee ballots had been sent violates the equal protection rights of absentee voters who cannot obtain a replacement ballot in person, and election officials were therefore required to mail replacement ballots, including a supplemental ballot, to absentee voters who requested them.

Heard, considered and decided by the court en banc.

The opinion of the court was delivered by: Blatz, C.J.

Concurring in part and dissenting in part, Page, J. and Gilbert, J. (concurring only)

Concurring, Gilbert, J.

Kathleen T. Blake, Michael J. Blake, Tom Kelly, and Ron Eibensteiner, individually and on behalf of the Republican Party of Minnesota, Intervenor-Respondents.


Petitioners, three individuals, including the chair of the Democratic-Farmer-Labor Party, brought this action under Minn. Stat. § 204B.44 (2002) against the Minnesota Secretary of State and the Hennepin County Auditor/Treasurer.*fn1 They sought relief regarding alleged errors, omissions and wrongful acts of respondents related to the then-upcoming election for United States Senator at the general election on November 5, 2002, following the death of Senator Paul Wellstone on October 25, 2002. Petitioners requested an order that would: (1) instruct the secretary of state to inform absentee voters of their right to obtain replacement ballots; (2) instruct local election officials to distribute replacement ballots to eligible voters who so requested; (3) instruct the secretary of state to print the supplemental ballot using the optical scan format with instructions in Hmong, Russian and Spanish and to have the ballots counted by optical scan machines; and (4) instruct that all distribution and receipt of ballots with Senator Paul Wellstone's name on them be stopped immediately pending an order allowing replacement ballots.

Petitioners filed and served the petition on October 29, 2002. The court issued an order that day requiring responses by 1:00 p.m. on October 30 and set argument for October 31 at 10:00 a.m. Four individuals, including the candidate of the Republican Party of Minnesota for attorney general and the chair of the Republican Party of Minnesota, filed a motion to intervene to oppose some of the relief requested in the petition. That motion was granted by order filed on October 31, 2002.*fn2

The case was argued on October 31. At argument, the court was informed that earlier that morning the Democratic-Farmer-Labor (DFL) Party had filed papers nominating Walter Mondale as its replacement candidate for the United States Senate. By order filed October 31 we granted some of the relief requested, particularly with respect to mailing of replacement ballots to absentee voters who had been mailed absentee ballots before Senator Wellstone's death and who requested a replacement absentee ballot and supplemental ballot. Because of the urgency of the situation, the order was issued with opinion to follow.

The event that gave rise to this case was the death of Senator Paul Wellstone in a plane crash on October 25. Senator Wellstone was the DFL candidate for United States Senator in the general election to be held on November 5. His death created a vacancy on the ballot. Minn. Stat. § 204B.13, subd. 1 (a) (2002). State election law authorizes a major political party to name a replacement to fill a vacancy in nomination of that party's candidate for partisan office. Minn. Stat. § 204B.13, subd. 2 (2002). In the event of a vacancy caused by the death of the candidate, the nomination certificate for the replacement candidate must be filed within seven days after the vacancy occurs, but no later than four days before the general election. Id., subd. 2 (b).

Minnesota Statutes § 204B.41 (2002) prescribes the process for conducting the election when a vacancy on the ballot created by the death or catastrophic illness of a candidate occurs after the 16th day before the general election.*fn3 Most important is the provision for preparation of an "official supplemental ballot," a separate paper ballot to be used for the race in which the vacancy occurred. This supplemental ballot is to accompany the regular ballot, on which the affected race must be crossed out. It is the interpretation and implementation of the procedures required by section 204B.41 that are at issue in this case.


The petition alleged numerous errors, omissions and wrongful acts. They can be categorized generally into three groups: (1) issues relating to the form and method of counting supplemental ballots; (2) issues relating to the conduct of the election process; and (3) issues relating to advice the secretary of state was giving voters relating to this election. At oral argument, counsel for petitioners indicated that with the nomination of a replacement candidate, petitioners' request for an order enjoining further distribution of regular absentee ballots*fn4 until the official supplemental ballot was available was moot. In addition, counsel for the secretary of state stated that the parties had reached agreement on all issues related to the form of the official supplemental ballot and the method of counting those ballots, as well as most other issues raised in the petition. The remaining issues, as presented at oral argument, focused on treatment of regular absentee ballots cast before the vacancy occurred and distribution of supplemental ballots to voters to whom regular absentee ballots had already been sent.

Petitioners first addressed their request for relief concerning regular absentee ballots that had been returned by the voter to election officials before the vacancy occurred. Section 204B.41 states that "[a]bsentee ballots that have been mailed prior to the preparation of official supplemental ballots shall be counted in the same manner as if the vacancy had not occurred." According to the statute, for regular absentee ballots sent back prior to the vacancy, the vote for United States Senator counts for the candidate selected on the ballot. This means that votes for Senator Wellstone would be counted for him, not for the replacement candidate.

Petitioner argued that issues of due process and equal protection were raised because votes of those who cast these ballots for Senator Wellstone would not count for a candidate who could be elected, but votes for other candidates on the ballot would. To avoid those constitutional issues, petitioners urged the court to interpret the statute as requiring that votes on those absentee ballots for all other offices be counted as if the vacancy had not occurred, but that no votes for United States Senator would be counted from those ballots. Petitioners further proposed that the court order distribution of absentee supplemental ballots by the most expeditious means possible to all voters who had requested absentee ballots in ...

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