(Law & Politics/December 1992)
The Great Lieutenant Governor Blunder
Is that the wrong person at Arne’s right hand?
BY DOUGLAS J. NILL
It was almost noon on the 31st of October when Minnesota Supreme Court Chief Justice Peter Popovich entered the crowded room in the Minnesota Judicial Center. His arrival brought the impromptu press conference to an abrupt close. He waved me into an adjoining room, and we quickly reached the business at hand.
And, so in the tumultuous days after Jon Grunseth's dramatic exit from the 1990 governor's race, the clock began ticking on Sharon Clark's legal challenge to remain on the ballot as the IR lieutenant governor candidate.
Minutes before Popovich's arrival, I had presented Clark's petition. The case, Clark v. Growe, filed on this autumnal day of mischief in the closing days of a campaign of purported dark princes, would advance through oral argument to written decision by the Minnesota Supreme Court within the next 30 hours, a historical record.
The clock was ticking loudly. The previous day, Minnesota Secretary of State Joan Growe indicated to the media that she had a 5:00 p.m. deadline on Friday, November 2, for making a final determination on the insertion of specific candidates' names in the November 6, 1990, general election ballot.
In the chaotic hours following Grunseth's withdrawal of his candidacy, Clark declined to withdraw and publicly stated that she desired to remain on the ballot. Concurrently, Arne Carlson and Joanelle Dyrstad, IR candidates who finished behind Grunseth and Clark, respectively, in the September 11, 1990, Minnesota primary election, publicly were expressing their desire to inherit Grunseth's and Clark's positions on the ballot. Growe joined the fray with her statements to Clark and the media that her office had "reached the conclusion that your candidacy for lieutenant governor is no longer operable in the absence of a gubernatorial candidate since… the Minnesota Constitution requires that governor and lieutenant governor run as a team."
Upon notice that Clark's request for a hearing was granted and scheduled the following morning, I associated myself with Mark Briol and Wilmes. We met at 5:00 p.m. at the Grunseth campaign headquarters, discussed our efforts with Clark and agreed to meet again at Briol and Wilmes' offices in the Norwest Tower at 2:00 a.m. the morning of November 1, 1990, the day of the hearing. It was there, in the early morning solitude of downtown, that with much argument and arm waving, pacing and smoking, we articulated the issues and wrote Clark's brief.
Lawyers love percentages. At 7:00 a.m., shortly before the arrival of Clark and her husband to review our work and be briefed by Briol on various aspects of the oral argument, and pleased with our efforts, we polled ourselves on Clark's chances of prevailing.
"Seventy percent," said Briol. "Seventy percent," I agreed. "Sixty percent," said Briol's partner, Greg Wilmes. "Fifty percent," countered Elam Baer, a Grunseth campaign official and fresh arrival to our strategy clique.
We recognized the fairness of Clark's position. This was, after all, the woman endorsed by her party and nominated in overwhelming fashion by 169,108 voters in the primary election to be the IR Party's lieutenant governor candidate. She had spent endless days on the road, suffering persistent stress-induced colds and flu and enduring innumerable "hog farmer" jokes.
Some surmised that Clark's bid to remain on the ballot was an attempt by malevolent Grunseth aides to play havoc with the Carlson camp. Nonsense. Clark is highly capable and the decision was her own. In those hectic hours Carlson was publicly stating that Clark would be involved in his administration. Clark aspired to by Commissioner of Agriculture, and her experience as president of the Minnesota Corn Growers Association along with her campaign experience and extensive civic contributions certainly entitled her to receive very strong consideration for the office.
Conventional wisdom said that if Clark followed Grunseth's lead and filed a withdrawal, Carlson would not renege on his public promise to involve Clark in his administration. Clark knew that if she pursued efforts to remain on the ballot, her efforts might anger Carlson. But then, Clark also had been skillfully advised by Grunseth campaign manager and attorney Leon Oistad that she remain on the ballot and was not required to withdraw. Moreover, Clark believed that rural interests were underrepresented and that she spoke for those interests. In those early hours, Clark understood that her decision to remain on the ballot was risky.
But as Briol and I awaited the dawn of the day of the hearing and the arrival of our client - and took stock of our frantic work of the prior few hours, we believed that Clark would prevail. We were satisfied that upon Clark's nomination by the people of her party in the September 11, 1990, primary election to be the IR lieutenant governor candidate in the general election, only Clark herself or an appropriate committee of her party could remove her from the ballot.
Minnesota has a law (Minn. Stat. Section 204B.13) explaining what happens when a vacancy in nomination occurs after the primary but prior to the general election, such as occurred with Grunseth's withdrawal. That law in its 1990 formulation (the law was changed by the 1991 Legislature but the changes are irrelevant to the Clark case and this article) provided that upon the withdrawal of a political party's candidate for governor or lieutenant governor, a vacancy in nomination "may" be filled by a committee of party members. If, however, the party committee declines to fill the vacancy (as indeed, the IR Executive Committee did in this case on Tuesday, October 30, 1990, determining that they did not have the authority to fill the vacancy created by Grunseth's withdrawal), then the vacancy "shall be filled" by the candidate who received the next highest number of votes in the primary.
Growe correctly recognized that they Minnesota Constitution requires that a political party's governor and lieutenant governor candidates must file and be elected as a team (to avoid the election of a governor and a lieutenant governor from different parties). Growe reasoned that upon Grunseth's withdrawal from the race, the IR party no longer had a team. But Growe's analysis was incomplete because she failed to recognize that either the IR Executive Committee would affirmatively act to fill the ballot vacancy created by Grunseth's withdrawal, or Carlson as the second place primary finisher would automatically advance onto the ballot. In either case the IR party would have a team and they did in fact have a team - it was just a substitution of a player on the team. The new team, upon Carlson's ascendancy to the IR gubernatorial slot on the ballot, was the team of Carlson and Clark. Clark was placed on the team through the primary process by IR voters; Carlson was placed on the team through the primary process and by Minnesota law.
Because Clark was elected to the team by the vote of her party in the September primary, only she or representative members of her party could withdraw or rescind her nomination. As we know, Clark declined to withdraw upon Grunseth's withdrawal upon Grunseth's withdrawal. And, in the early evening hours of October 30, the IR Executive Committee, in a widely reported meeting, effectively acted to keep Clark on the ballot by declining, for reasons of their own, to remove her and replace her with Carlson's choice, Joanell Dyrstad.
Thus, Clark remained on the ballot and neither Growe nor Carlson nor the Minnesota Supreme Court nor even Grunseth had the right to remove her. An established principle is that only the members of a political party should participate in the nomination (or removal from nomination) of its candidates. The Minnesota Supreme Court's 5-2 split decision allowing Growe to remove Clark from the ballot violates this principle and constitutes an impermissible intrusion by the court into the internal affairs of a political party. (Constitutional scholars might characterize the courts' decision as a violation of the separation of powers principle, which is another discussion for another day.) As Popovich correctly recognized in his dissent, "This court cannot disregard the (intent of the voters in the primary election) nor should we decide a political matter that is wholly outside the realm of judicial expertise."
Although Popovich correctly recognized that Clark should remain on the ballot, he erred in asserting that the IR Party failed to fulfill its duty to its members to provide nominees for office. As noted, the Minnesota law governing vacancies provides that if a party committee declines to fill a post-primary vacancy on the ballot, the vacancy "shall" be filled by the second place finisher in the primary. The IR Executive Committee, by declining to provide a candidate to replace Grunseth, effectively decided to allow the gubernatorial vacancy to be filled via the governing law. Hence the IR Executive Committee acted, albeit passively, to fill the gubernatorial vacancy and place Carlson on the ballot.
Popovich likewise erred in criticizing the IR party for not acting to provide a lieutenant governor nominee. Clark was on the ballot, as discussed, by virtue of the vote of members of her party in the September primary. In the early evening hours of October 30, 1990, the IR Executive Committee effectively acted to keep Clark on the ballot by declining to vote or otherwise officially act to remove her with Dyrstad.