The (Carlson)-Wellstone Rule: What if Keith Ellison Quits the Attorney General race?

Please note:  I made a few changes in this blog:  Specifically, state law does not allow Ellison to simply  abandon his candidacy.  Please read below.


The Minnesota DFL are worried about Keith Ellison.  In the Thursday, August 16, 2018 press conference DFL Party Chair Ken Martin said he supports Ellison "at this time," but also indicated that he is concerned about the domestic abuse allegations and is investigating.  What happens if Ellison’s candidacy is no longer viable and he needs to be replaced?  History and law take us to the Carlson-Wellstone Rule, formulated in 1990 and then 2002 to address the replacement of candidates who had party nominations.

In 1990 the Republican Party selected Jon Grunseth to be its gubernatorial nominee over  Arne Carlson both in the convention and primary.   However on October 14, 1990,stories emerged in the general election that he and several of his friends had a nude swimming pool party that included Grunseth’s daughter and friends.  Allegations also emerged that he had an extramarital affair.  Pressure mounted and he was eventually persuaded to leave the ticket.  The Republican Party sought to substitute Arnie Carlson on the ballot, Democrats went to court challenging it.

          Even though the law was unclear on what to do, Minnesota Supreme Court Justice Sandy Keith (who was appointed by then current DFL governor and gubernatorial candidate Rudy Perpich), allowed for the Republican Party to substitute Carlson for Grunseth, ruling that it would be the right thing to do to let the voters have a choice.  The Court also rejected efforts by Grunseth’s running mate Sharon Clark to force the party to make her the nominee, Clark v. Growe, 461 N.W.2d 385 (Minn. 1990).  Finally, in a side note, while the Grunseth problems were mounting then Senator Rudy Boschwitz  was worried about how these problems could explode and hurt him. He approached Grunseth and  promised to cover his expenses if he withdrew.  When Grunseth left the race, he asked Boschwitz to  pay up and when he did not Grunseth sued him in Court for breach of contract.  In Grunseth v. Boschwitz, a district court ruled the contract unenforceable because it violated Minnesota Statutes §211B. 10, making it illegal to “reward or promise to reward another in any manner to induce the person to be or refrain from or cease being a candidate.”

In 2002   Senator Paul Wellstone’s plane crashed, killing him on October 25, 2002, just eleven days before the election.  The DFL Central Committee met and replaced him with Walter Mondale who then lost to the Republican nominee Norm Coleman.  Among the legal battles” in this case was over the allocation of absentee ballots and votes already cast before Wellstone died.  In Erlandson v. Kiffmeyer, 659 N.W. 2d 724 (2003), the Minnesota Supreme Court ruled that those who had cast their absentee ballots and wanted to change their votes could request a new ballot and revote.

The importance of these two substitutions leads to what can be called the Carlson-Wellstone rule, codified in Minnesota Statutes §204B.13.  For a partisan office such as governor, a vacancy in a nomination occurs when a candidate dies or is declared ineligible to run for office by a court.  If that occurs,   §204B.13 allows for the party according to its rules to substitute a candidate.  In the case of a gubernatorial candidate it is replacing, the substitution includes also the lieutenant  governor.

So how does all this apply here to Keith Ellison?  Assume pressure continues to mount over allegations of domestic abuse involving Ellison.  He is the DFL’s nominee for attorney general.  State law does not allow the party simply to oust him and replace with someone else.  Ellison cannot simply give up his candidacy.   He could of course move out of state and be declared ineligible to run, but short of being declared ineligible  neither Ellison nor the DFL can do much to get him off the ballot.  If the DFL were to offer him something of value to try leave the race they and Ellison would be violating  §211B.10.

 If Ellison were to simply abandon his candidacy, another scenario emerges.  State law does not currently allow him to do this.  However, it is possible the DFL Central Committee or another designated group of party officials, according to their bylaws, could select a replacement.  There is no requirement that the DFL would have to pick Matt Pelikan, the convention-endorsed candidate, or any of those who had run for attorney general in the primary.  In effect, they could even select Lori Swanson to be their nominee.  The DFL could then try to argue that who the party nominee is, is a matter of internal party rules and therefore sue the state and challenge the law preventing an Ellison substitution.  There is mixed jurisprudence coming from the US Supreme Court regarding whether  such an "internal party matter" issue would prevail here, but this is a possible argument.  This suit would be part of an "error and omissions" suit under state law to correct the ballot.

Whether it comes to all this is anyone’s guess.  However, the Carlson-Wellstone rule outlines the way the DFL could try to replace Ellison.

The New Minnesota Normal: Special Sessions and Government Shutdowns

The 2011 regular session of the Minnesota Legislature limps to an end without a budget deal. No news here, it was entirely predictable. Not since 1999–the first year of Jesse Ventura’s term as governor–has a budget session of the Minnesota Legislature ended on time without a special session, partial governmental shutdown, or a controversial ending such as in 2009 when Pawlenty used his unallotment power (subsequently declared illegal by the Minnesota Supreme Court) to balance the budget.

What has emerged is the new normal for Minnesota politics. The new normal is that the completion of the budget does not occur by the constitutionally-mandated deadline in May but instead July 1–the commencement of the new budget year. That seems to be the new deadline. But even then, that date, like October 1, for the federal government, appears more suggestive than drop dead. A threatened partial shut down in 2003 and then a real one in 2007 too eased the stigma of missing July 1, in Minnesota.


Why the New Normal?

The question becomes why? Why has the new normal emerged? Why does it seem impossible to reach budget agreement? One answer is divided government, yet even back to the days when Perpich was governor and the DFL controlled the legislature there were special sessions to address the budget such as in 1985. Under Carlson and then Ventura they became more frequent and then under Pawlenty and now Dayton they have emerged as the new normal. No; divided government is only a partial answer.

There are two causes explaining the rise of the new normal. The first is a growing ideological divide over the nature of government. The second is structural, questioning the efficacy of the current budget process.

Why Government?

The governor and the GOP-led legislature are as far apart today as they were in January regarding all the essentials over the budget. Dayton wants to spend $37 billion and erase the $5 billion deficit with some cuts that do not hurt the poor or education and with tax increases on the wealthy. The GOP wants to spend $34 billion and erase the deficit with cuts alone that seem to burden the poor, elderly, education, and local governments.

At the heart of the dispute between the Governor and the GOP is a basic difference in their rival views of the government versus the market. The GOP generally seems to see government and taxes as bad, an intruding upon the wisdom and functioning of markets. Let markets act and they will generate jobs prosperity, and solve the basic problems of society.

For Dayton, while market solutions and the private sector are the preferred places to produce jobs and make decisions, they recognize markets fail. Markets fail to address needs of equity. They produce inequities in wealth and income distribution, they fail to address core problems of education funding and disparities, they fail to address problems in infrastructure investment.

No, it does not look like the GOP wants no government. Many still find it necessary to hire police and enforce basic laws, and apparently to enact laws to prevent same-sex couples from marrying and women from terminating pregnancies or give tax breaks to the wealthy. The real difference between the GOP and Dayton and the DFL is over how much government and what government should do in our society. It is a debate between rivaling views-government versus the market, the individual versus society.

The debate over “why government” is ideological. Arising simultaneously are two other phenomena aggravating the debate over why government–the triumph of ideology over pragmatism and party polarization.

Daniel Bell famously wrote in the 1960s a book entitled “The End of Ideology.” There it is described a United States where belief was that we had reached consensus on basic issues of what constitutes the good life and the role of government in society. The issue was not ideology or goals but merely technique of the means to the end. Nearly 50 years later, we now seem to be living not with the end of ideology but with its resurgence.

There are basic ideological divides over means and ends. But more importantly, the ideological divide for some means all or nothing. By that, if one side is right the other must be wrong and therefore no compromise is possible. Thus, the emergence of ideology over pragmatism.

Political parties nationally and in Minnesota seem more polarized than 20, 30, or 40 years ago. There is more ideological cohesion in the parties, especially for the GOP, than in the past. This is a product of special interest politics and caucuses which are dominated by ideological extremists.

Thus, combine politically polarized parties with a take no prisoners ideological divide over the role of government and what do you get?

A Flawed Budget Process

But the polarization is only one problem. The second is the flawed budget process in Minnesota. It is a process built for the horse and buggy days trying to operate in the 21st century. Government is so much more complex, the budget numbers so much larger, the functions more diverse, that it is perhaps impossible to reach consensus and make decisions between the beginning of January and the State Constitution forbids the legislature to meet in regular session after the first Monday following the third Saturday in May in any year. There simply may not be enough time to do the budget by law.

But think also how flawed the current budget process is right now. The old governor makes the initial budget. New governor is elected and needs to update it to reflect his priorities and the fiscal forecast in November. The Legislature comes to work in early January and then it waits until late January or so for the governor to release the budget. Then they all wait until late February for the updated fiscal forecast.

Thus, it is really not until late February or March that the work on the budget commences. And even then, there are separate hearings in the House and Senate, forcing conference committees to act. The budget also is really ten separate bills, with spending distinct from taxation, and no real work gets done until there are agreements on the different spending targets for each of the areas such as HHS, K-12, and so on.

Sound confusing? It is. It is also inefficient. At least two months are wasted at the beginning of every budget cycle waiting for the governor’s budget, the fiscal forecast, and then agreement on budget targets. Now add more wrinkle–budgets are created right after state elections when often many new legislators or constitutional officers are elected. They are green, often learning on the job while creating a new budget. In a distant past when life and budgets were less complicated (and smaller), perhaps it was possible to do all this with a part-time citizen legislature. But those days have passed. A new budget process is needed, with new time lines and ways to move the work along.

Thus, as the session ends the only real question is whether there is a budget by July 1. The bet here is 60/40 odds of a partial shutdown. The reasons are ideological and process-driven, producing the new normal.