The Curse: Law and Politics of Senate Vacancies in Minnesota

The Minnesota Senate seat held by Al Franken appears to be cursed.
With his resignation over sexual harassment allegations and Governor Dayton soon to announce his replacement, the seat held by Franken continues its troubled history, both legally and politically.

The 1978 Elections
The stored history of the seat goes back to 1976.  Then Senator Walter Mondale, tapped to be with Jimmy Carters running mate, resigns to become vice-president of the United States.  With the senate seat open, then Governor Wendell Anderson resigns, his Lieutenant Governor Rudy Perpich  becomes governor, and then names the former as senator.  This apparent quid pro quo looked sufficiently bad enough that voters in Minnesota threw out all the major Democrats (Dflers) in the state, replacing them with Republicans in 1978.  Wendell Anderson was replaced with Rudy Boschwitz.  Muriel Humphrey, who replaced her husband Hubert when he died in 1978, was replaced by Republican David Durenberger, and Governor Perpich was defeated by Republican Al Quie.  The DFL also lost control of the state legislature.
Voters were so angry about the way Anderson apparently acted to make himself governor that the law regarding filling of US Senate vacancies was changed, codified now in Minnesota Statutes  §204D.28.  It allows for the governor to appoint to fill a temporary vacancy (Subd. 11.) until a special election can be held at the next regular election in November (Subd. 6) (except in cases where the vacancy occurs close to another election), with the winner then serving out the remainder of the regular term.

1990 Elections
Boschwitz served two terms, losing to Paul Wellstone in 1990.  The 1990 election was odd for several reasons.   There was a gubernatorial election that year pitting incumbent Rudy Perpich (who won back his seat in 1982) against Republican State Auditor Arne Carlson.  Originally the GOP had nominated John Grunseth as their candidate but several weeks before the election stories regarding sexual improprieties against him emerged, and there was pressure for him to quit.  Pressure came from Boscwwitz who offered to pay his expenses to quit.  Such an offer was illegal under state law and when later Grunseth sued in court for a breach of contract the suit was dismissed.  A legal battle then ensued by Democrats over replacing Grunseth with Carlson as the GOP nomination, culminating in a Minnesota Supreme Court decision allowing for that to occur.  Carlson went on to win the election.
At the same time Wellstone, outspent by more than 6:1 by Boschwitz, beats the latter to win the Senate seat.  In part Wellstone’s victory was attributed to a letter Boschwitz ( who was Jewish) sent out to the Jewish community accusing Wellstone (also Jewish) of not being a good Jew.  The letter was written by two of Mr. Boschwitz's Jewish supporters and signed by them and 70 others, and it was printed on Boschwitz campaign stationery and mailed at campaign expense on November 1, 1990, just days before the election.

2002 Election
Wellstone served in the senate for two terms, and then was running for a third term in 2002 when on October 25,  less than two weeks before the election, he died in a plane crash.    At that point in a race against Republican Norm Coleman more than 25,000 absentee ballots had already been cast.  In a special DFL Executive Committee meeting former Minnesota Senator Walter Mondale was picked to replace Wellstone.  Democrats wanted absentee votes cast for Wellstone automatically transferred to Mondale or in the alternative, the absentee ballots thrown out.   State law did not appear to allow for absentee voters to request a new ballot to vote A major legal battle ensued where eventually in Erlandson v. Kiffmeyer, 659 N.W. 2d 724 (2003), the Minnesota Supreme Court allowed for voters to request new ballots if they had already voted.
In addition, the Mondale-Coleman race was also marred by another controversy.  Just days before the election there was a televised memorial service for Wellstone which attracted national celebrities to pay their respects.  It was supposed to be a non-partisan event but when it turned partisan (at least this was the impression by some) through a speech by Rick Kahn (a friend of Wellstone’s) who more than a dozen times said let’s "win this election for Paul Wellstone."  Governor Jesse Ventura  walked out in disgust, the media and the public came to view the service as a political pep rally, and that shifted the momentum to Norm Coleman who won the election.  On November 4, Governor Ventura named Dean Barkley senator until Coleman was sworn in.

2008 Election
In 2008 Coleman was running for re-election, challenged by Al Franken who returned to the state to run for election.  It was an expensive election, culminating in what appeared to be less than a 1,000 vote victory for Coleman on election day.  After the Canvassing Board meet it declared Coleman the victor by a 206 margin.  A mandatory recount took place resulting in fights over absentee ballots.  Specifically, during the recount, local election officials and the candidates reviewed the absentee ballot return envelopes that had been rejected on or before election day and agreed that some of them had been improperly rejected.
On January 3, 2009, the Secretary of State's Office opened and counted the 933 ballots identified during this process. On January 5, 2009, the State Canvassing Board certified the results of the election as 1,212,431 votes for Franken and 1,212,206 votes for Coleman, a margin of 225.  Coleman sued and eventually in Coleman v. Franken, 767 N.W.2d 453 (Minn. 2009), the Minnesota Supreme Court ruled for Franken and on July 7, 2009–after the seat had been vacant for more than six months–he was seated.

2017 and Beyond
And now it appears that Franken is resigning, kicking in Minnesota Statutes  §204D.28, allowing Governor Dayton (DFL) to replace Franken.  There is a lot of speculation surrounding who it will be but assume as one choice that it will be his Lieutenant-Governor Tina Smith (although there are many other possible picks to replace Franken).  If so, this means there will be a vacancy in that position.  Article V, section 5 declares that: “The last elected presiding officer of the senate shall become lieutenant governor in case a vacancy occurs in that office.”  That would make it Senator Michelle L. Fischbach (GOP)  who would become Lieutenant-Governor, creating a vacancy in her position and necessitating a special election for her senate seat under Article IV, Section 4, of the Constitution. 
Why is all this important?  Until recently the GOP held a one vote majority (34-33) in the Minnesota Senate.  But effective December 15, 2017, DFL Dan Schoen will resign, coincidently also because of sexual harassment allegations.  Assume that the DFL will hold his seat (which is not guaranteed but possible with him having won 53.13% in 2016) and that the DFL picks up Fischbach’s seat (not likely since she won with 68.6% in 2016 in a strong Republican area), the DFL could then flip party control of the Minnesota Senate in DFL Governor Mark Dayton’s last year in office.