Ethics committee takes no action, Tabke keeps District 54A seat

Any doubt about House membership staying at 67 DFLers and 67 Republicans may have finally been allayed.

The House Ethics Committee heard oral arguments Thursday and had member deliberations regarding the District 54A election contest narrowly won by Rep. Brad Tabke (DFL-Shakopee).

Ultimately, after a party-line vote defeated a motion to reject the election returns and declare a vacancy, a vote was approved by all four members for no recommendations.

“The burden of proof is on the petitioner to prove that the finding of fact is clearly erroneous,” said Rep. Kelly Moller (DFL-Shoreview), who co-chairs the committee with Rep. Greg Davids (R-Preston). “… What happened is troubling, no one can dispute that. But given what our role is here and the rules we’ve set out here, I don’t believe the petitioner has met his burden of proof.”

Acting as the petitioner, House Republican Floor Leader Harry Niska (R-Ramsey) emphasized the case is not about any improprieties by Tabke. “This matter is clearly about the House’s constitutional role to be the final judge of the returns and eligibility of its members. … This is purely about a very narrow legal issue about what to do with, frankly, undisputed facts.”

“Unprecedented,” is how attorney David Zoll, who represented Tabke at the hearing, described the request. “The Legislature has this authority, but it has never used it to reverse the court’s conclusion and remove a seated member.”

[MORE: Committee Rules for Election Contests, Filings, Exhibits]

How’d we get here?

In a race with nearly 22,000 votes cast, Tabke beat Republican challenger Aaron Paul by 14 votes on Election Day. However, an audit discovered there were 20 missing ballots from one precinct and one from another. “Scott County has come to the conclusion that the ballots were likely disposed of while they were in their secrecy envelopes, after being removed from their signature envelopes but before being tabulated,” County Attorney Ron Hocevar wrote in a Nov. 27 preliminary investigation summary.

Paul filed a lawsuit challenging the election results, in part, saying, “Scott County election officials unlawfully lost and failed to count significantly more ballots than would be needed to change the announced result of the election, meaning at the very least the actual victor is in absolute doubt and at worst the candidate who received fewer votes has been announced as the winner."

After a two-day trial, including where six of the 12 voters chose to testify and say they voted for Tabke — six others said they voted for Paul — District Court Judge Tracy Perzel ruled Jan. 14 the results stand. "There is no basis in fact or law for holding a special election,” she wrote. 

Arguments

On Thursday, Niska argued, in part, that 20 voters were told they must come into court and publicly say whom they voted for else their vote may not count. Or is the result inconclusive because the number of missing ballots is larger than the winning margin?

“We think the answer under law is that that voter testimony cannot be used reliably and those voters cannot be put to the task of revealing who they voted for or losing the power of their vote,” he said. “ … The issue is what is the legal precedent we’re setting. … We shouldn’t be relying on their testimony to decide the election. This leaves us with an inconclusive election.”

[MORE: View petitioner’s brief, respondent’s brief]

Zoll said the 20 votes didn’t affect the election outcome.

“Petitioner does not believe that the court or the Minnesota House of Representatives should rely on the voters sworn testimony under oath and under the penalty of perjury about how and for whom they cast their ballot. That’s the very heart of this issue.”