It’s been a hectic week in Minnesota politics. On Monday, DFL Attorney General Lori Swanson announced she’d throw her hat in the ring in the governor’s race, prompting a game of speculation up and down ballot as incumbents in other races reconsidered their options in light of high-profile, newly open seats.
With Swanson seeking the governor’s office, Rep. Keith Ellison filed to run for the AG seat, which he was long rumored to be interested in, Tuesday; with Ellison’s 5th Congressional District seat suddenly open, a long list of DFLers filed to represent that reliably Democratic Minneapolis district, which in turn left a last-minute opening for the Minnesota House seat currently occupied by Rep. Ilhan Omar, who is one of the many candidates now running for Ellison’s seat.
All of this raises interesting questions for politicians who are elected to one office but eyeing another, particularly when candidates have so little time to make such decisions. Can you run for multiple offices in Minnesota? And if you win elections for two different seats, could you hold both of them?
Running for offices
Regarding the question of running for multiple offices at once, the answer is no, says Ben Petok, a spokesman for the Minnesota Secretary of State’s Office. “The short answer is it’s not ever OK to run for multiple offices at the same time,” Petok said. “Under state law you cannot run for multiple offices in the same election,” even if one is a state office and one is a federal office.
Since the governor and the attorney general races are both on the ballot in November, for example, Lori Swanson could not run for the attorney general seat she currently holds in light of seeking the governorship. Rep. Erin Maye Quade (DFL-Apple Valley), who is Rep. Erin Murphy’s running mate in the governor’s race, and Rep. Debra Hilstrom (DFL-Brooklyn Center), who is running for attorney general, likewise couldn’t simultaneously seek to retain their seats in the House. Anyone who has filed for one office has to withdraw from it to file for another in the same election.
For example, Ellison had to withdraw his candidacy for Congress when he filed for attorney general, Petok said. Both races are on the ballot in November.
If these candidates hadn’t taken themselves out of the running for their old seats, their candidacy would have been invalidated by the Secretary of State’s Office, Petok said.
While that rule applies to running for two seats in the same election, it doesn’t apply for an officeholder not up for re-election this year. For example, “If you are a sitting state Senator this year, and your seat is not up, you could file to run for another office,” Petok said.
State Sen. Karin Housley (R-St. Mary’s Point), for example, who’s challenging U.S. Sen. Tina Smith in November, did not have to give up her seat in St. Paul to run for U.S. Senate, since her Senate seat isn’t up for re-election this year.
Holding offices
Housley will have to give up her Minnesota Senate seat if she wins the race and assumes the U.S. Senate seat, however. In most cases, it’s illegal to hold two offices — sometimes even two government positions — in Minnesota.
Over the years, a number of laws, attorney general opinions, court cases, plus the Minnesota Constitution have established rules about when it’s permissible to hold two government positions at a time and when it’s not. A rundown of the rules can be found in a report by House Research.
The rules bar state legislators from holding federal positions, except postmaster, state positions, except notary public, or local positions, except police officer. A legislator may be on a neighborhood revitalization program board, or serve as a state employee, provided he or she takes leave during the legislative session.
“Because of the constitutional restriction, a legislator cannot use official influence to be appointed or elected to another position; nor is he or she subject to being influenced in voting by the hope of creating a new position that the legislator would then try to obtain,” according to the House document, per court precedent.
Minnesota Supreme Court justices can’t hold any other state office, or federal office except military reserve, a restriction aimed at upholding the independence and impartiality of the judiciary.
It is legal to run for an office that conflicts with a currently-held office without resigning, but winning and accepting the second office constitutes resignation of the first.
Because of the sheer number of combinations of offices a person could hold, there aren’t laws or court rulings or opinions about conflicts between every possible permutation of two offices you could hold in Minnesota. It could take more laws and litigation to spell those things out as they arise.
Earlier this year, when then-Lt. Gov. Tina Smith replaced Sen. Al Franken, who resigned following allegations of sexual misconduct, Senate President Michelle Fischbach, a Republican, became DFL Gov. Mark Dayton’s lieutenant governor automatically.
Fischbach was sued for not giving up her Senate seat when she assumed the lieutenant governorship. A judge ruled the first time that because the legislative session hadn’t started yet, it was too early to bring the case, and that it was the Senate’s job to decide whether its members were eligible to serve. Fischbach was sued again shortly before she resigned from her Senate seat, at which point the plaintiff said the suit would be voluntarily dismissed.
In general, the rules follow the logic of a 1974’s McCutcheon v. City of St. Paul, when the Minnesota Supreme Court ruled that a person could be a police officer and hold an elected office, but not a police chief, because a police chief has policymaking authority that could cause conflicts with another office.
Another Minnesota Supreme Court case spelled that concept out thusly: “Public offices are incompatible when their functions are inconsistent, their performance resulting in antagonism and a conflict of duty so that the incumbent of one cannot discharge with fidelity and propriety the duties of both.”
