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.

Replacing Keith Ellison–Who should be the next Fifth District Congressperson?

Curiously overlooked in the media coverage of the forthcoming Fifth congressional district DFL

primary have been two things–the issues and qualifications of the candidates running for the office.  Both the Star Tribune and Minnpost have contended that the candidates differ little on the issues–and that may or may not be the case–but generally coverage of this primary has been limited to the horse race of who is perceived to be ahead, the money race of who is raising money, and the perhaps now the get out of the vote race.  Given that the primary effectively will determine the next  member of Congress for the Fifth because it is one of  most Democratic seats in the country, media coverage has been remiss in its coverage in terms of the issues and qualifications.

But there is also another issue connected to both the issues and qualifications and that is the question of what it means to be an effective member of Congress.  This is always an important matter because given how the Fifth District is a safe seat for one party–as are approximately 90-95% of all seats in the House of Representatives–and thus the vote on August 14, could very well decide who represents the people of this district for the next 20 or more years. But given the polarized times and significant policy differences across the  state if not the country, the winner of this seat could well be part of a new majority Democratic Congress taking on Trump and defining the future for the party, or it could be part of a close opposition party doing the same.  The point here is that the Democratic Party and the country are at a critical crossroads nationally, and what happens in the Fifth District will be important.

So what does it mean to be an effective member of Congress?   As a society we do not discuss this issue enough and this should be a critical question for residents of the Fifth District.  However, there are some factors that do influence or determine effectiveness.

  First, qualifications do matter.  By that, one of the criticisms of Donald Trump is that he largely fails to understand government and  how it works.  Whatever skills he has as a businessperson, government and business are two different entities.  There is an ethic of public service that involves respect for the Constitution and Bill of Rights, there is an understanding of how government works that involves respect for things  such as checks and balances and checks and balances. There is appreciation for the fact that in government process matters.  Being effective in government, whether president or a member of Congress, means one needs experience or skills to do the job.  One should not hire just anyone to rewire your house, fix your car, or repair your plumbing.
The same is true for governing and legislating.  To be effective as a legislator or member of Congress means having some legislative  skills, or at least the kinds of skills necessary to legislating.  These include listening to constituents,  working with other legislators, grasping the details of how institutions work.    In short, experience matters.

A second qualification is about the very notion of what it means to be a representative.  The very word “represent” is an ambiguous term.  To represent can mean to be demographically representative of the people you serve.  It can also mean to represent in terms of reflecting their view or interests.  There is no definitive answer to which of these or perhaps others meanings of representation are correct.  It is probably a blend of them.  But there are also two other critical notions surrounding representation often ignored.  One is the idea that one should not simply represent those who voted for you for everyone in your district.  The second is that with a person in the Fifth district potentially being a representative for the next 20 years, that person should be capable of serving the interests of an area that is undergoing significant generational change into the future.  One should be a candidate not simply for your present voters in a primary who will perhaps only reflect a small percentage of all the voters in the Fifth District, but be someone capable of representing those who live in Minneapolis as well as its suburbs.  It should also be one who can perhaps look to the future, to be representative of a coming new generation of residents.  In the last few years Minneapolis, Saint Paul, and the surrounding areas have begun to experience this generational shift, and a good candidate in the Fifth has to be one who can project or reach into the future.

Finally, to be an effective member of Congress means connecting one’s experience to the people one represents, to the ability to work with other members in a legislative setting to be able to move legislation.  Too often in the era of social media the image seems to be that legislating is simply about espousing beliefs or ideas. The real skill is in transforming beliefs into real legislation.  It is in building political coalitions, connecting them policies, developing policy details and programs, and then understanding how to move them through a legislative chamber.
As one of my former students once said, there is a difference between show horses and work horses.   
We have had enough show horses in Congress and what we need instead are a few more work horses, those who have show the experiences to do the job, the ability to link people to policies, and the skills to navigate legislation.   Connect all of this do a person capable of reaching out to all the constituents of the Fifth along with the ability to appreciate the generational change going on in that district and one would have the ideal candidate for Congress.

The Paranoid Style of Michele Bachmann

“In my opinion the State Department, which is one of the most important government departments, is thoroughly infested with communists.” –Senator Joseph McCarthy, 1950.

 

“Information has recently come to light that raises serious questions about Department of State policies and activities that appear to be a result of influence operations conducted by individuals and organizations associated with the Muslim Brotherhood."  –Congresswoman Michele Bachmann, 2012.

    Fear and prejudice make people do stupid things.

    *    In 1692 Salem, Massachusetts, fear of the new world and prejudice against the unknown resulted in the deaths of 24 people—19 hung, four dying in prison, and one crushed to death—all because they were accused of being witches. The story is told well in Arthur Miller’s The Crucible—a banned book.

    *    During WWI and the Depression 30s, fears arising out of hunger and desperation and prejudice against hope for a better life led to raids, beatings, and imprisonment for union members and those who wished to advocate for their political views.

    *    After Pearl Harbor, fear and prejudice against the Japanese led to the forcible relocation and internment of over125,000 loyal Americans into concentration camps.

    *    In the 1950s, fear of the Soviets and prejudice against those who saw the world differently from Senator Joe McCarthy were subject to communist witch hunts and Hollywood blacklists that led to the loss of life and livelihood of thousands.

    *    And in civil rights protests in the 1960s, and at the Stonewall Inn in 1969, fear and prejudice against those advocating equal rights for Blacks and gays were treated to beatings and police brutality.

    Then there is Michele Bachmann who seems to be cornering the market on fear and prejudice with her defamatory remarks about Congressman Keith Ellison and Huma Abedin as being members of the Muslim Brotherhood.  Bachmann’s latest accusations are so ugly and dirty that even Republicans such as John McCain and Speaker John Boehner are condemning them.  Her comments  and accusations about Muslims and the State Department take a page from Senator McCarthy’s comments about Communists and the State Department in 1950.
    America is a beautiful nation, often filled with hope and promise of a better life for us and our children. Yet this country has an ugly side to it that we often forget and ignore.  It is the story of America as told so well by Richard Hofstadter in his The Paranoid Style of American Politics. We often cloak fear and prejudice in the flag and persecute minorities or blame individual liberties as the cause of our insecurities.  If only the government had more power or authority, if only people had less rights, some promise, then we could root out witches, communists, disloyal Americans, homosexuals,  immigrants, terrorists, and Muslims and make the country safe for the rest of us God-fearing Christian Americans.
    Yet Bachmann’s recent attacks are only the most recent episode of her appeal to fear, prejudice, and ignorance. Recall again her 2012 presidential candidacy.  After a first place victory in the August, 2011 Iowa straw poll, she was on top of the world.  Yet she suddenly fell from political grace.  Yes the entrance of Texas Governor Rick Perry hurt her campaign by carving into her political base, but it was also her comments about vaccines that doomed her.  In a September 12, 2001 presidential debate Bachmann criticized Perry for an executive order he issued mandating that all sixth-grade girls be vaccinated against the human papillomavirus (HPV) as a measure to prevent cervical cancer.  Bachmann’s criticism was that such an order was an overreach of government authority and an infringement upon individual liberty.  This is a fair criticism.  But she continued her attack the next day on the NBC Today Show.  Describing her conversation with a woman after the debate Bachmann recounted:  “She told me that her little daughter took that vaccine, that injection, and she suffered from mental retardation thereafter. There is no second chance for these little girls if there is any dangerous consequences to their bodies.”.
    Bachmann’s repeating of the urban legend that vaccines cause cognitive problems—retardation—was swiftly condemned by the medical community.  The source of this claim was a long discredited and doctored study that purported to find this link.  The medical evidence was significant—there was no connection and instead one could argue, as Governor Perry had correctly suggested in the debate, that HPV and other vaccines would be medically beneficial and would better promote public health than not getting the vaccine.  Yet because of this urban legend connecting vaccines with autism, parents were refusing to inoculate their children.
    Bachmann’s repeating and apparent embrace of this myth was roundly criticized.  Suddenly she looked like some type of crackpot, ready to embrace outlandish and fringe ideas.  Some might have concluded that Michele Bachmann believes the world is flat, the Earth is at the center of a universe God created on the evening of Sunday, October 23, 4004 BC (according to calculations by Medieval Bishop James Ussher), and that Elvis is still alive and well and living in hiding somewhere, thereby explaining why she wished him happy birthday on the anniversary of his alleged death.
    Bachmann boiled a cauldron of fringe views and crank beliefs. She was often criticized for factual inaccuracies in many claims, ranging from assertions that the American Constitutional framers freed the slaves (they did not) to the claim that Dodd-Frank (the bill passed in 2010 to regulate Wall Street financial transactions to the Patient Protection and Affordable Care Act (Obamacare) have already lead to the loss of millions of American jobs or increased health care costs despite the fact that most of the major provisions of both had yet to go into effect.  She also simply and repeatedly made other assertions that were simply wrong or widely exaggerated.  Louis Jacobson of Polifact points out that Bachmann through 2010 had earned five “Pants on Fire” on the Truth-O-Meter and has never scored better than “false” in her five truth tests.  She is the hall of famer of political lies and inaccuracies.
    I am not sure what is worse.  Is she lying for political advantage?  Is she that ignorant about  facts and history?  Is she dumb, lying, or appealing to prejudice?  Neither of these explanations are praiseworthy.  With the comments about the Muslim brotherhood I am not sure if her main failing  is the falsehood about Ellison and Abedin or equating being Muslim with being un-American?
    Joseph McCarthy’s end came in 1952 whenJoseph Welch, Special Counsel to the Army asked of him in a hearing:  “Have you no sense of decency sir, at long last? Have you left no sense of decency?”
    I wonder the same about Bachmann.  Maybe the turning point came this week when Senator  John McCain declared: "When anyone, not least a member of Congress, launches specious and degrading attacks against fellow Americans on the basis of nothing more than fear of who they are and ignorance of what they stand for, it defames the spirit of our nation, and we all grow poorer because of it.”