Here is another possibility in

Here is another possibility in the Minnesota Senate race. While we think the natural reading of the relevant statute is that the Democrats have to put up a new candidate, there is a possible argument to the contrary. The argument would run as follows: The statute that we linked to below, Sec. 204B.13, provides that a party has the “authority” to substitute a new candidate if its nominee dies more than four days prior to the election. The Democrats could argue that this provision is permissive, and the party is not required to substitute a new candidate. Then, if Wellstone stays on the ballot and wins, a “vacancy” will be created as of January. The Minnesota Statute providing for vacancies in Senate seats unhelpfully defines “vacancy” to mean “vacancy.” So it is not impossible to argue that upon the election of a deceased candidate, a vacancy exists. The Minnesota statute then provides that a special election will be held the following November, and the governor appoints someone to serve in the interim. This would give the Democrats a year rather than ten days to reorganize with a new candidate. While we do not think this is the correct analysis, it is not entirely implausible either. However, there are three huge problems with this approach. First, the Minnesota Supreme Court likely would rule that the Minnesota statutes implicitly require a party to substitute a candidate if it is possible to do so (or else forfeit the election), and that the election of a deceased person does not create a “vacancy.” Second, even if the state court were willing to interpret the Minnesota statute as suggested above, a substantial Constitutional issue would remain; as noted below, we think the Constitution pretty clearly requires a successful Senate candidate to be a living person. And third, it is unlikely that Minnesota’s next governor will be a Democrat. So even if the Democrats think they have a plausible statutory argument, leaving Wellstone on the ballot would be a very high-risk strategy.


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