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Latching on to Errors and Omissions in Ballots

By Eric L. Lipman

Yesterday, a special substitute panel of the Minnesota Supreme Court issued an opinion resolving recent challenges to designating judicial officers as "incumbents" on the canary ballot.

Golden Valley attorney, Jill Clark, is a candidate for Seat 4 on the Minnesota Supreme Court. On August 14 of this year, thirty days after the close of filings for state judicial office, Ms. Clark filed an Errors and Omissions challenge to use of the moniker "incumbent" on the ballot lines adjacent to the name of her opponent, Justice Lorie Skjerven Gildea.

While Clark's attack upon the incumbent designation statute had several prongs to it, for me, the most interesting aspect of the Court?s opinion was its resolution of the Respondent election officials? defense of laches. Respondents asserted that given the requirements for ballot preparation and programming assistive technologies for disabled voters, Clark?s challenge was filed much too late for her to obtain relief.

This defense follows on from where an earlier case, filed in 2004, left off. In 2004, a Carver County voter, Bonn Clayton, filed an Error and Omissions challenge to the re-election filing of Court of Appeals Judge David Minge. Clayton?s challenge was filed on the day after the close of candidate filings, but nonetheless drew a laches defense from the respondent election officials. In Clayton, however, the Court declined to address this defense; leaving open the question of how promptly such challenges need to be filed.

By contrast, in yesterday?s opinion, the laches analysis is more detailed ? providing a sharper, outer boundary on the filing of such challenges. The Court wrote:

In this case, in the absence of the relief requested, petitioner Clark has not been barred from the primary ballot and petitioner Robins will not be barred from voting for her (or any other candidate on the primary ballot). Given petitioners' unreasonable delay in asserting the interpretations of the constitution and election statutes that they espouse here, and balanced against the significant potential prejudice to respondents, to other election officials, to Justice Gildea and potentially to other candidates, and to the electorate, we conclude that it would be inequitable to grant the relief sought by petitioners with respect to the primary ballot even if we were to conclude that their arguments had merit. Accordingly, we deny the petition on grounds of laches with respect to the primary ballot.

The Court?s complete laches analysis, as well as an interesting discussion of the Governor?s appointment powers, is accessible here.

Full post as published by Within the Scope on September 06, 2008 (boomark / email).