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The Minnesota Supreme Court primary may be the most important election nobody’s heard of

Low expected turnout means a very small number of voters could determine the outcome of a very important election.

Left to right: Craig Foss, incumbent Justice Natalie Hudson and Michelle MacDonald
Hudson photo by Briana Bierschbach

Historically speaking, Minnesota Supreme Court justices running for re-election don’t have a whole lot to worry about: An incumbent hasn’t lost a re-election bid since the 1940s.

But some supporters of incumbent Associate Minnesota Supreme Court Justice Natalie Hudson worry that this year could be different.

On Aug. 9, Hudson faces two challengers in her bid to serve again on the state’s highest court: attorney Craig Foss, who says he’s running because he can’t find a job, and attorney Michelle MacDonald, who ran an unsuccessful bid for the state’s highest court in 2014 that MinnPost’s Doug Grow called “one of the most bizarre campaigns in state history.”

Of the three candidates running for the slot, Hudson is the only one with experience as an elected judge — and the only one actively fundraising for her campaign to retain her seat, according state campaign finance records.

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But those efforts may not matter: In this primary, only the top two vote getters’ names will advance to the general ballot. With no other statewide primary on the ballot, voter turnout in general is expected to be low — and in judicial elections, the number of people voting always tends to be lower.

What this means for the Supreme Court race: The random choices of a very small number of voters — or a determined effort by a small group of activists — could have outsized influence on the result, and could even cut Hudson out of the general election.

That presents Hudson with a daunting challenge: How can she get voters to show up to vote for an office that few care about, or even understand what it does?

A unique set of constraints

If you think Hudson should fall back on the well-established set of tricks and techniques used by any politician to get out the vote, you should know that the rules of the game for judicial elections are different.

For one thing, in Minnesota judicial elections are nonpartisan, so judicial candidates can’t rely on voters loyal to a party pushing them over the top. Political parties can endorse judicial candidates, but the only information provided to voters on the ballot, besides candidates’ names, is which one of the candidates (if any) is an incumbent.

Nor can judicial candidates rely on talking to voters about their views on the issues, exactly.

Following 2002’s U.S. Supreme Court decision Republican Party of Minnesota v. White, Minnesota judges have been legally allowed to talk about their views on “disputed legal and political issues.” They may not, however, say how they would rule on an issue if it came before the court, said Marie Failinger, a professor at Mitchell Hamline School of Law.

“They can say ‘I hate abortion,’ but they can’t say, ‘If I had an abortion case this is how I would rule,’ ” Failinger said.

But professional ethics in this state still to a degree discourage mixing law and politics. Ideally, Failinger said, the public has confidence in justices’ ability to cast aside political baggage and fairly apply the law.

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For candidates who choose not to discuss their political beliefs on the campaign trail, that leaves few topics on which to sell their candidacy: their experience and judicial philosophy, for example — not necessarily the kind of thing that animates voters.

During campaigns, prospective judges also rack up endorsements, often from lawyers. They are also allowed to run print or radio ads, but it’s not the type of race for which you’ll see ads on TV, said Herbert Kritzer, a professor of law at the University of Minnesota Law School — those are expensive.

“The kinds of advertising (run) in most judicial elections are basically promote ads, i.e. ads that are promoting, singing the praises of the candidates,” Kritzer said — often, they’ll depict the candidate as a family person, list supporters or tout their belief in justice.  

Meet the candidates

In her campaign, Hudson has focused on speaking about her work in Minnesota court systems.

Hudson has been practicing law since 1982. She was appointed to the Minnesota Court of Appeals by Gov. Jesse Ventura in 2002. Last year, Gov. Mark Dayton appointed her to fill former Justice Alan Page’s seat on the state’s highest court.

Last week at a League of Women Voters candidate forum in Plymouth, she told about 20 attendees she was the most qualified candidate in the race. Hudson stressed her belief that justices should maintain independence from political parties.

“Party endorsements are the antithesis of what we want in our judicial elections,” she said. “It is vital that judges remain neutral and impartial and that the public has confidence in that neutrality.”

Hudson’s July pre-primary campaign finance report, which covers Jan. 1 to July 18, revealed she had raised $18,937 in campaign contributions.

She told MinnPost she’s not taking any incumbent advantage for granted, especially with low turnout in the primary.

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“I don’t know that incumbent now means what it used to mean or has the value that it used to have,” she told MinnPost, citing the fact that MacDonald got 47 percent of votes in the 2014 general election against an incumbent despite a setback in her campaign.

Hudson’s Minnesota State Bar Association questionnaire can be found here.

Challenger Craig Foss is an attorney who worked for Legal Services of Northwest Minnesota from 1998 to 2012. He’s done court-appointed attorney work since he was laid off from that job.

“I’m running because I can’t find a job — because the good lawyers of the Minnesota Bar don’t want to hire a legally blind attorney,” he told League of Women Voters forum attendees last week.

In an interview with MinnPost, Foss described himself as focused on individual rights and property rights, and spoke of reforming the legal system to make it easier for defendants to represent themselves. He has not sought the endorsement of any political party, and has not formed campaign committee to raise cash for his bid.

His Minnesota State Bar Association candidate questionnaire can be found here.

MacDonald has been on the ballot before. In 2014, she ran a campaign against incumbent David Lillehaug for his seat on the Minnesota Supreme Court, but ultimately lost with 47 percent of the vote.

That year, MacDonald was endorsed by the state Republican Party at its convention, but she lost the party’s support following a Star Tribune story about her arrest on suspicion of drunken driving and resisting arrest in 2013. On the night of her arrest, MacDonald said she hadn’t been drinking and refused a field sobriety test until she was in the presence of a judge.

MacDonald was convicted of refusing a breath test and refusing arrest, a conviction that was upheld in the Minnesota Court of Appeals in February, according to the Star Tribune. She was not found guilty of driving under the influence.

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This year, MacDonald was recommended for endorsement by a committee at the GOP convention in May, but “blistering dissent from two members of that committee said MacDonald was unworthy of a spot on the Supreme Court,” the Pioneer Press reported. The party ultimately did not endorse a candidate.

MacDonald has been an attorney since 1986, according to her State Bar candidate questionnaire. Her practice has focused on family law, and she previously represented Sandra Grazzini-Rucki, a Lakeville mom who was found guilty of of six felonies for hiding her two daughters from their father for two years.

MacDonald characterized herself as a reformer with conservative values. She does not believe judges should be silent on the subject of their political beliefs. “I believe judges should be open and honest about their party affiliation, because while nonpartisan, most judges have an affiliation,” she said at the forum.

“I’m not anti-establishment but I’m more individualized in my thinking,” MacDonald told MinnPost last week. “I think each case has its own DNA and I think we uphold the Constitution.”

MacDonald did not file a pre-primary campaign finance report, for which the deadline was July 25. As of her last filed report in June, she had not raised  money this cycle and had about $1,200 in outstanding campaign expenses.

Why the election matters

It’s tough to get voters to care about judicial elections — especially for an August primary, when many of them either mentally or physically far from the ballot box (though they can vote early or absentee with no excuse). Many of the people paying close attention are lawyers.

For starters, with so many layers of courts in the United States (three in Minnesota and three in the federal system), just what the Minnesota Supreme Court does is lost on many voters.

A quick primer: The Minnesota Supreme Court’s seven justices make up the state’s court of last resort, handling appeals from Minnesota’s lower courts and big-picture legal questions, such as statutory issues and questions dealing with the Minnesota Constitution. It also helps administer lower Minnesota courts.

Justices are elected to six-year terms and are required to retire when they turn 70. If they vacate their seat midterm — which happens most of the time, often because of the age limit — the governor may appoint a replacement. That replacement must face election to keep the seat.

While the Minnesota Supreme Court’s rulings can affect all Minnesotans, most Minnesotans never come into direct contact with it: You might remember it from the state Senate recount in 2008 and the gubernatorial recount in 2010 — the Minnesota Supreme Court made rulings in those processes.

Incumbent advantage

In past primaries for Minnesota Supreme Court seats, incumbents haven’t had too much difficulty dispatching challengers.

In 2012, incumbents Chief Justice Lorie Skjerven Gildea and Associate Justice David Stras both faced multiple challengers. The incumbents won — Gildea with 50 percent and Stras with 49 percent. Their respective challengers — two each— racked up between 20 and 29 percent of votes.

But this year could be different, without any other statewide races on the ballot to drive turnout.

Former Minnesota Supreme Court Associate Justice Paul Anderson doesn’t count on voters reading up on Supreme Court candidates if and when they head to the polls.

“The voters that are going to be turning out will be inordinately related to contested Senate and House of Representative races,” Anderson, who is supporting Hudson, told MinnPost.

Anderson himself faced primary challengers in 2008; he said he campaigned by speaking to civic groups. He ran a few print and radio ads before the general election.

On the one hand, he said that as the incumbent, he felt confident that he’d built a good reputation as a judge in his nearly two decades on the court.

But on the other hand, “What’s worrisome about the primary is who shows up to vote because there’s such a low turnout,” he said. “This is the thing that causes angst and worry — you’re just not sure, (though) you think it’s going to be all right,” he said.

The League of Women voters forum is available to watch here.