House Ethics Committee recommends no further action in District 54A election contest

The House Ethics Committee voted 4-0 to recommend that the Minnesota House take no further action on the election contest for House District 54A after hearing oral arguments and reviewing the district court record.

The committee’s discussion focused on 20 absentee ballots that county investigators say were discarded before they could be counted, questions about whether testimony from those voters can be relied on in an election contest, and whether the district court’s findings — including a manual recount and a two-day trial — were clearly erroneous. The petitioner argued the proper remedy is a new election; the respondent’s attorney said the trial record shows Representative Brad Tabke won and the contest should end.

Representative Harry Niska, the petitioner, told the committee that this is “purely about the House’s constitutional role to be the final judge of the returns and eligibility of its members” and urged caution about relying on voter testimony to decide elections where ballots were not counted. “Those 20 voters should not, have been disenfranchised. They should have the opportunity to vote in a new election,” Niska said.

David Zoll, attorney for Representative Brad Tabke, told the committee that Tabke won the election and that the district court’s findings are supported by the evidence. “The evidence here proves clearly and convincingly that Representative Tabke won the election and is the duly elected representative for House District 54A,” Zoll said, noting a manual recount, Scott County’s investigation and the trial court’s credibility determinations.

Committee members debated legal precedent and process. Petitioner counsel relied on the 1895 Minnesota Supreme Court decision Pennington v. Hare to argue that the testimony of voters whose ballots were never counted creates an impermissible incentive for voters to reveal their secret ballots. Respondent counsel and several members pointed to distinctions in the record: the court found the 20 ballots were cast and later lost, 12 of those voters testified at trial (six said they voted for Tabke, six said they voted for Aaron Paul), and the court concluded that the lost ballots could not change the outcome given a 14-vote margin.

Chair Davids moved to recommend that the House reject the election returns and declare a vacancy for House District 54A; that motion failed on a 2-2 vote. Representative Cleburne then moved to recommend that the House take no further action regarding the election returns for House District 54A; that motion passed on a roll call, 4-0.

Members repeatedly noted that the underlying facts reported by the court and by Scott County elections staff were troubling — that ballots were lost and that a longtime city elections official left shortly after the election — but said the committee must apply its rules. Committee members cited Rule 7 and Rule 8 of the committee’s election-contest rules: the petitioner bears the burden to prove by clear and convincing evidence that the returns should not be accepted, and the committee may set aside a trial court’s factual findings only if they are clearly erroneous.

After the 4-0 vote in favor of recommending no further action, the committee adjourned.

Votes at a glance

- Motion by Chair Davids to recommend that the House reject the election returns and declare a vacancy for House District 54A: failed, 2 ayes, 2 nays. - Motion by Representative Cleburne to recommend that the House take no further action regarding the election returns for House District 54A: approved, 4 ayes, 0 nays.

Context and next steps

Committee members and counsel referenced the district court record, a manual recount, Scott County Elections Manager Julie Hansen’s investigation, testimony from election judges Kaye Gamble and Rocky Swearingen, and the trial judge’s written order. The committee recommended that the House take no additional action; the House may consider the committee’s recommendation in a future proceeding.