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September 9, 2016

Ken Martin,

Steve Simon, Minnesota Secretary of State,

Petitioner Ken Martin (Petitioner) files this response to the Courts order of
September 9, 2016, regarding the timeliness of Petitioners Minn. Stat. 204B.44
petition. For the reasons stated below, Petitioner respectfully submits that the equitable
doctrine of laches as set out in Martin v. Dicklich, 823 N.W.2d 336 (Minn. 2012) does
not bar the petition and that the Court should proceed to establish an appropriate schedule
for hearing and promptly resolving this case on the merits.
Petitioner filed this petition shortly after the Secretary of State announced that it
would accept the Minnesota State Republican Partys Certificate of Nomination (the
Certificate) to place Donald J. Trump and Michael R. Pence on the general election
ballot. He could not, in good faith, file the petition without first conducting necessary
factual and legal investigation. He did so promptly and filed suit withinat the latest
nine business days (two calendar weeks) after learning of the potential basis of his claim.


This petition was filed much more quickly than the petition at issue in Martin, where the
Court refused to apply laches.
Further, application of laches would be inappropriate because the matter before the
Court is of national significance and no party would suffer such substantial prejudice that
the Court should resolve the case on procedural grounds rather than on the merits. The
issue before the Court is discrete and can be resolved in sufficient time to ensure that
voters receive a ballot accurately listing duly nominated presidential and vice
presidential candidates. Thus, while Petitioner appreciates that time is necessarily tight in
election litigation, he respectfully submits that he acted sufficiently promptly to allow
consideration of the merits of this dispute.

Laches is an Extraordinary Remedy That Is Sparingly Used

Laches is an equitable doctrine which applies to prevent one who has not been

diligent in asserting a known right from recovering at the expense of one who has been
prejudiced by the delay. Winters v. Kiffmeyer, 650 N.W.2d 167, 169 (Minn. 2002)
(quoting Aronovitch v. Levy, 56 N.W.2d 570, 574 (Minn. 1953)). The doctrine requires a
finding of both (a) unreasonable delay and (b) unfair prejudice as a result of the delay.
The practical question in each case is whether there has been such an unreasonable
delay in asserting a known right, resulting in prejudice to others, as would make it
inequitable to grant the relief prayed for. Id. at 170 (quoting Fetsch v. Holm, 52 N.W.2d
113, 115 (Minn. 1952)); see also Peterson v. Stafford, 490 N.W.2d 418, 419 (Minn.
1992) ([W]e have examined applications for relief . . . from the perspective of whether
the applicant acted promptly in initiating proceedings.).


In applying the doctrine of laches, this Court has recognized the strong preference
for resolving cases on the merits. Indeed, even where the Court has found that it could
apply laches it often declines to do so. See, e.g., Martin, 823 N.W.2d at 342 ([W]hile we
are concerned about the time that elapsed before the petition filing on September 10, as
well as the relatively short period of time between the filing of the petition and the
deadline for when ballots had to be printed and available to voters, we do not believe it
would be inequitable to grant relief here); Winters, 650 N.W.2d at 170 ([T]he need for
certainty in the judicial election process compels us to address the merits of Winters
petition notwithstanding determination that laches could have been applied); Peterson,
490 N.W.2d at 420 (addressing merits because of the nature of these proceedings
despite finding that petitioner did not act with alacrity in pursuing challenge); Breza v.
Kiffmeyer, 723 N.W.2d 633, 635 (Minn. 2006) ([L]aches is a discretionary, equitable
concept, and in this case we choose to address petitioners claim on the merits.).

Martin Filed This Petition Promptly After Learning of the Potential Basis for
a Claim and Conducting Necessary Factual and Legal Investigation
At the threshold, laches does not apply here because Petitioner acted with

reasonable haste to initiate this action. As set out in more detail in the petition, this matter
involves the State Republican Partys failure to duly nominate alternate electors at its
convention in May 2016. At a subsequent meeting on August 24, the State Republican
Party Executive Committee met to select and approve alternate presidential electors itself.
The factual predicate for the action before the Court did not occur untilat the earliest


Thursday, August 25, when the Secretary of State accepted the Certificate and concluded
that Trump and Pence would appear on the general election ballot.
As Chair of the DFL, Petitioner was obviously not present at the State Republican
Party Convention. Nor was he present at the Executive Committees August 24 meeting.
No legal violation is apparent on the face of the Certificate, which states that [p]ursuant
to Minn. Stat. Ann. 208.03[,] the individuals listed on the certification were duly
nominated and elected as Presidential Electors and Alternate Electors of the Republican
Party of Minnesota. See Petition, Ex. A. After the State Republican Party submitted the
Certificate, however, reports began surfacing that the alternate electors had, in fact, not
been nominated by a delegate convention as required by law. Only then did the basis for
a potential claim begin to emerge.
No Petitioner before this Court should take the initiative of litigation lightly, much
less so when it involves such fundamental issues of national significance. Rather than
rushing precipitously to the courthouse door to file an action, Petitioner conducted a
reasonable, good faith investigation to verify what events had and had not occurred
during conventions and internal meetings to which Petitioner had not been privy and to
whichas the Chair of the opposing major political partyhe did not have ready access.
Petitioner also needed to conduct necessary legal research. The provisions of
Minn. Stat. 208.03 regarding alternate elector nomination are of recent vintage. To
Petitioners knowledge, they have not been subject to prior judicial interpretation and
there is no established regulatory practice. Petitioner thus could not file this action


without conducting substantial research to verify the legal basis of his claim. Over the
Labor Day holiday weekend and early this week, Petitioner prepared the petition.
Thus, it was only nine business days (two calendar weeks) from the date the
Secretary of State first indicated that Trump and Pence would appear on the ballot to the
date Petitioner filed this action. This is hardly so protracted a period that it would be
inequitable to grant relief here. Martin, 823 N.W.2d at 342. In Martin, indeed, the Court
refused to apply laches notwithstanding a nearly three week delay between a candidates
announcement of his intent to withdraw and a petition seeking to place a substitute
candidate on the ballot. See id. at 341-42. The same result should inure here. Petitioner
acted more quickly than when the Court refused to apply laches in Martin. And, given the
national significance of the matter before the Court, Petitioner respectfully submits that
the case should be resolved on the merits rather than on procedural grounds.1

No Party Will Suffer Such Great Prejudice That the Court Should Resolve
the Petition on Procedural Grounds Rather Than on the Merits
Even assuming that Petitioner took unreasonably long to research, draft, and file

the petition (whichPetitioner submitshe did not), the application of laches would
remain inappropriate because no party will suffer significant prejudice because of any
delay in filing suit. Carlson v. Ritchie, 830 N.W.2d 887, 893 (2013) (Because we have
concluded that Carlson unreasonably delayed pursuing the first and second claims in his

The Court, moreover, should be slow to impose procedural rules forcing litigants to file
precipitously, at the expense of developing an appropriate factual and legal record for
presentation to the Court that will allow this Court to fully evaluate, consider and resolve
the dispute on the merits.

petition, our laches analysis requires that we consider the prejudice, if any, that would
result if we granted relief on these claims).
This is plainly true for the State Republican Party. While it surely would prefer not
to have to address the merits of Petitioners claim, it will have a full and fair opportunity
to do so. Petitioner served the State Republican Party with the petition and the Court has
made it a party to the litigation. There is no significant action the State Republican Party
would or could have taken had Petitioner filed suit a few days earlier.
The same is also true for the Secretary of State. The election is two months away.
To be sure, various administrative tasks must be completed in advance of Election Day.
That should not and does not inoculate the Secretary of States acceptance of the State
Republican Partys inaccurate Certificate from effective judicial review. Most notably,
ballots need not be distributed to voters until September 23. Minn. Stat.
204B.35, subd. 4. To the extent that this matter is not resolved on the merits before
county auditors print ballots in preparation for distribution on September 23, ballots can
be reprinted if necessary. Moreover, Minnesota law provides . . . for alternate ballot
forms. Martin, 823 N.W.2d at 342 (citing Minn. Stat. 203B.06, subd. 3a, 204B.30).
In short, where need be, elections have been conducted in Minnesota in the past
notwithstanding last minute vacancies and substitutions. Id. That is true on far more
compressed schedules than here. See, e.g., Erlandson v. Kiffmeyer, 659 N.W.2d 724, 727
(Minn. 2003) (October 31 order instructing election officials to mail replacement
absentee ballots to voters in advance of November 5 election after tragic death of Senator
Paul Wellstone on October 25). In short, as the Court has recognized in past cases,

election administration concerns should not usually outweigh the paramount interests of
voters, who are entitled to a ballot that accurately identifies the candidates actually
running for office. Martin, 823 N.W.2d at 342; see also id. (reaching merits of petition
notwithstanding the relatively short period of time between the filing of the petition and
the deadline for when ballots had to be printed and available to voters).


For the reasons stated above, Petitioner respectfully submits that laches does not
apply here and that the Court should reach and resolve the merits of his petition.

Dated: September 9, 2016

s/Marc. E. Elias
Marc E. Elias (admitted pro hac vice)
700 Thirteenth Street NW
Suite 600
Washington, D.C. 2005-3960
(202) 654-6200

s/Kevin J. Hamilton
Kevin J. Hamilton (admitted pro hac vice)
1201 Third Avenue
Suite 4900
Seattle, WA 98101-3099
(206) 359-8000
s/David J. Zoll
David J. Zoll (#0330681)
100 Washington Avenue South
Suite 2200
Minneapolis, MN 55401
(612) 339-6900