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If a lawmaker violates residency rule, what happens with names on the ballot?

In the last month, two Minnesota senators — Republicans Gene Dornink and Torrey Westrom — have had their residency questioned by people who want to remove the lawmakers from the ballot.

State Sen. Gene Dornink of Brownsdale stated he moved into his newly drawn district within the six months before the Nov. 8 election, as required by the Minnesota Constitution.
State Sen. Gene Dornink of Brownsdale stated he moved into his newly drawn district within the six months before the Nov. 8 election, as required by the Minnesota Constitution.
Minnesota Senate Media Services/A.J. Olmscheid

In the last month, two Minnesota senators have had their residency questioned by people who want to remove the lawmakers from the ballot.

Those who filed legal challenges said they’re trying to uphold rules in the state Constitution ensuring legislative candidates live in a district they hope to represent. Yet both petitions with the Minnesota Supreme Court had ties — direct and indirect — to the political opponents of Sens. Gene Dornink of Brownsdale and Torrey Westrom of Alexandria, suggesting there might be other motives at play.

So, what happens if a candidate is found in violation of the residency requirement and is booted from the ballot?

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Dornink challenge thrown out

Dornink and Westrom are among a small number of legislators whose homes were not located within the districts they hoped to represent after lines were redrawn following the 2020 Census.

Both Dornink and Westrom said they moved into their newly drawn districts six months before the Nov. 8 election, as required by the Minnesota Constitution.

Dornink was first elected in 2020 in a southern Minnesota district that includes Austin and Albert Lea. Rather than stay at his home in Hayfield and potentially face Republican Sen. Carla Nelson, Dornink announced a move to Brownsdale. But a resident in that new district, Judy Olson, petitioned the Minnesota Supreme Court, arguing Dornink had not actually moved to Senate District 23 and was still living in Hayfield. The evidence cited for that assertion was gathered in large part by a man who had been the campaign manager of Dornink’s primary opponent.

Hanson was running to Dornink’s political right. And she publicly supported the legal challenge, saying if Dornink wasn’t removed from the primary ballot, Democrats would seek to remove him later on — harming GOP chances of keeping the seat. The petition was thrown out by the Supreme Court, which said it was filed too late, shortly before the primary election and long after early voting had begun. Dornink beat Hanson 71.5 percent to 28.5 percent in the primary and contends challenges to his residency are frivolous.

But what would have happened if the petition was successful? Or if Democrats mount a successful legal fight later on?

Cassondra Knudson, a spokeswoman for Secretary of State Steve Simon, said if one of two candidates in a primary is found ineligible, the other candidate simply advances to the general election. Which means, if Dornink had been removed, Hanson would have been the Republican candidate in the general election against Democrat Brandon Lawhead.

But if Democrats do challenge Dornink’s residency for the general election and if they were to succeed, Knudson said the GOP has roughly a week to designate a new candidate – assuming the original candidate is found ineligible 79 days or more before the general election.

If Dornink was ruled ineligible closer than 79 days to the election, the November election results for the legislative race are declared invalid. In that case, there would be a special makeup election in February between Lawhead and a Republican candidate picked by the party.

Westrom challenge still pending

Westrom’s residency was challenged by a third-party candidate running to the lawmaker’s political right. The third-term senator — who previously was elected to eight terms in the House — lived in Elbow Lake. But he announced a move to Alexandria to run in an open district instead of potentially competing against Rep. Jordan Rasmusson, R-Fergus Falls, for the retiring Sen. Bill Ingebrigtsen’s seat.

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Ashley Klingbeil, running under a party named “We the People,” and her campaign manager Christine Fischer, argued in court filings last week that they have video evidence that Westrom’s Elbow Lake home is in use while the Alexandria one is vacant and “appears abandoned.”

“No member of Torrey Westrom’s family was present at the property during numerous residency checks and no personal vehicles were observed on the property,” the petition says.

Westrom’s attorney R. Reid LeBeau II filed a response in court that was published online Tuesday afternoon. It says Klingbeil sat on purported evidence too long, hampering Westrom’s rights. But it also says Westrom  “went far beyond what others have done to establish residency.” 

The attorney says Westrom closed on his new home May 6 — two days before the residency deadline — and began moving in the same day. While the document says Westrom has been absent “intermittently” while away on legislative work, his family has listed their previous home with a realtor and have hosted extended family “numerous times” at the new home.

Westrom’s attorney contends the “residency checks” done on Westrom’s prior and current home were sparse, and total video taken of the properties lasts only 14 minutes. “The whole of this petition is based on less time than the average coffee break,” the filing says.

The legal response also contends Klingbeil and Fischer are guilty of violating state “peeping tom” law by ignoring signs warning against trespassing, recording video of their property from the yard and peering into the home. The filing says Klingbeil was quoted in the Swift County Monitor-News saying “‘[t]he property said, ‘no trespassing.’ We didn’t care. We did it anyway.’”

State Sen. Torrey Westrom’s residency was challenged by a third-party candidate running to the lawmaker’s political right.
Minnesota Senate Media Services/Catherine J. Davis
State Sen. Torrey Westrom’s residency was challenged by a third-party candidate running to the lawmaker’s political right.
In Westrom’s case, Klingbeil hopes the residency challenge will lead to a two-person race between Klingbeil and the DFL candidate, Kari Dorry, Fischer told MinnPost.

Fischer said a special election “could” be ordered by a court, though she believes it would be unlikely since there’s time to correct ballots. “In my opinion the GOP had a chance to run a candidate and should not be allowed to replace Westrom with another candidate on the ballot,” Fischer said.

But that does not appear to be an option. State law says a major political party can nominate a new candidate if theirs is removed. And a special election would be called if Westrom is removed after the 79th day before the general election — which is this weekend. David Schultz, a political science and election law professor at Hamline University, said “barring anything really unusual” there isn’t wiggle room in the statute.

That means if Klingbeil succeeds, Republicans could either pick someone to run in the November general election or a February special election. In follow-up comments, Fischer acknowledged the GOP would have an opportunity to replace Westrom but said it would be hard for them to come up with an alternative in a week.

In 2016, the state Supreme Court ruled then-Rep. Bob Barrett didn’t live in his northeast metro district. He was removed from the ballot, but the Pioneer Press reported at the time that the court rejected an argument that the election should be held without a Republican. Anne Neu was named to replace Barrett and won a special election for the seat.

Editor’s note: This story has been updated with a new court filing from Westrom.