Linda Jenness, “John Ewards,” and qualifications disputes in Minnesota presidential elections

Rick H. linked to the complaint filed in Minnesota challenging Donald Trump’s eligibility. Setting aside the ripeness issues present in this challenge (like so many already filed), I wanted to dig into some of the history in Minnesota. There’s a higher likelihood of getting to the merits, but still some significant barriers.

In 1972, the Socialist Workers Party ticket nominated 31-year-old Linda Jenness for president and 21-year-old Andrew Bailey for vice president. (Jenness was no stranger to election litigation–she is the namesake of the 1971 case Jenness v. Fortson, a case from Georgia on petition signature requirements for ballot access.)

Jenness and Bailey had some difficulty getting on the ballot in some states because both were constitutionally ineligible to serve. In July 1972, Minnesota Secretary of State Arlen Erdahl said he would not put their names on the ballot. They threatened litigation (as newspapers at the time report).

In a turn of events unclear to me, by September they were back on the ballot. They mustered 940 votes in the November 1972 election in Minnesota. News sources don’t reveal litigation that took place, but there are a couple of statements in newspapers from the era suggesting that because the people of Minnesota formally voted for presidential electors, not for candidates, it was impossible for the Secretary of State to know if the candidates the electors voted for would be ineligible. The Secretary put those ineligible candidates on the ballot.

Minnesota has a rich history of minor party candidacies, and ballot access is easier than in some other states. In 2004, non-natural born citizen Roger Calero and underage running mate Arrin Hawkins appeared on the presidential ballot in Minnesota. Calero made the ballot again in 2008. 27-year-old Peta Lindsay appeared on the 2012 ballot. Minnesota’s rich history isn’t just one of minor party candidacies–it’s also one of allowing openly unqualified presidential candidates to appear on the ballot.

Understandably, Minnesota’s Secretary of State has publicly said he has no role reviewing qualifications and will defer to the legal process.

(It’s worth noting that former Secretary of State Joan Growe is one of the plaintiffs in the Minnesota case claiming that “the Secretary of State has both the authority and responsibility to determine whether a candidate for office is ineligible to appear on the ballot for the presidential nomination primary or the general election”–but in 1980, she allowed Workers World Party vice presidential nominee Larry Holmes, who was around 27 at the time of the election, to appear on the ballot, while excluding Bailey on another ticket.)

For this reason, I am skeptical that there is such an “authority and responsibility,” as the cited statutes offer precious little support for that claim except fairly generic responsibilities of the Secretary of State.

That said. Minnesota law offers a separate mechanism for individuals to file challenges. That includes, “an error or omission in the placement or printing of the name or description of any candidate or any question on any official ballot, including the placement of a candidate on the official ballot who is not eligible to hold the office for which the candidate has filed.”

There’s a wrinkle in the interpretation of this statute. Presidential candidates are not required to “file[].” Parties submit candidate names for participation in the presidential primary. So it’s not clear that on its face this statute could apply to presidential primary candidates. Now, that said, when I’ve bumped into potential ambiguities in statutes like this in other states in previous elections, state authorities have tended to construe their jurisdiction broadly even though I’ve suggested it should be construed narrowly (and I’m sure there are other who have strong thoughts on this in different ways–I’m just sharing what I wrote nearly a decade ago and still think is right). “Including” here, for instance, does not purport to be exhaustive about the types of “error[s] or omission[s]” that might fall under this statute. I have no idea how a state court would interpret this statute–I simply point out that it’s not quite as clear as it might appear on its surface.

And it’s entirely possible that there were no challenges to candidacies in 2004, 2008, or 2012, so those candidates made the ballot (as the paperwork was accepted by the Secretary of State) without any challenge.

But, the state of Minnesota’s interest in scrutinizing qualifications has risen significantly since 2004. In that election, John Kerry and John Edwards carried the state of Minnesota in the popular vote. When the electors met, however, only 9 of the 10 electors voted for “John Kerry” for president. The 10th voted for “John Ewards,” a vote construed for John Edwards. All 10 then voted for John Edwards for vice president. Congress counted all these votes in 2005.

The ballot were handwritten, which left the possibility of this error (and it was assumed to be an error). Minnesota responded by enacting a statute that eliminated the anonymity of electors in casting ballots and would allow the replacement of any “faithless” elector who attempted to cast a vote for a candidate other than the one they were pledged to support. In 2016, an elector attempted to vote for Bernie Sanders instead of Hillary Clinton; he was replaced. In 2018, the Eighth Circuit upheld the Minnesota law against a challenge brought by that would-be elector. And of course the United States Supreme Court in Chiafalo and Baca approved of similar statutes.

If Minnesota now has a law on the books that compels electors to vote for candidates, it strips away some of the autonomy that was once left to them–and that was present in 1972. The Supreme Court has approved of a statute like this. And it increases the state’s interest (in terms of the Anderson-Burdick balancing test, which has so far been largely absent in examining any such review mechanisms–more on that in a future post for sure) in scrutinizing the qualifications of presidential candidates (even in a primary).

I do not know that this is the case brought at the right time or that has a statutory mechanism in place to get to the merits. But I do think Minnesota provides some unique wrinkles to how we think about the state power to adjudicate presidential candidate qualifications.

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