By Reed Anfinson
Editor’s Note: Torrey Westrom’s residency challenge will be before the state Supreme Court Wednesday.
Attorneys representing Senator Torrey Westrom in a challenge to his place on the Nov. 8 ballot for the District 12 state Senate seat submitted a detailed rebuttal to claims he hasn’t established residency.
Ashley Klingbeil, an independent candidate running for the new District 12 Senate seat, and supporter Christine Fischer submitted a petition to the Minnesota Supreme Court Aug. 8 asking Westrom be taken off the ballot. Klingbeil, Alexandria, is a conservative running under the party label “We the People.”
In responding to Klingbeil and Fischer’s petition, Westrom’s attorneys, R. Reid LeBeau II and Benjamin Pachito, immediately call it “frivolous.” They also ask the court to dismiss the petition because it was submitted 69 days after Westrom submitted his affidavit of candidacy May 31. The claim states Fischer and Klingbeil have failed to establish that Westrom isn’t a resident of Douglas County, which is in District 12.
“In February of 2022, Senator Westrom and his family decided to move to the newly created District 12, which has different borders than the previous District 12 Senator Westrom currently represents,” the response states.
In the first week in March, the Swift County Monitor-News in Benson carried a story on Westrom’s decision to move. “After much prayer and deliberation with my family, supporters, and community members, I look forward to seeking the Republican endorsement and continuing to represent West Central Minnesota in the state Senate, as the senator from Senate District 12,” he is quoted in the March 9 edition.
After the announcement, the response says, Westrom immediately began looking for housing in the new Senate District 12. That search started in March and continued in April. However, like many people living in rural Minnesota, the Westrom family found the search time consuming due to the extremely tight and competitive housing market. They finalized a purchase agreement for a home on Lake Mary near Alexandria April 27.
When filing an affidavit of candidacy for the Minnesota Senate, a candidate certifies that he or she will be a resident of “this district for six months on the day of the general or special election.” May 8 was the deadline for establishing residency for the Nov. 8 general election.
The response goes on to detail actions Westrom took to establish residency at his new home including:
April 29 – He informs the Grant County Assessor’s office that he is changing his homestead tax status to Douglas County.
May 6 – Westrom closes on Lake Mary property. The previous owner’s belongings are moved out within 24 hours.
Westrom changed the residence on his Minnesota I.D. card to the Lake Mary Address.
On or about May 6, Westrom contacted the Ottertail Power Company to have the electricity account for the new home changed to his and his wife’s name.
Westrom switched the propane service at this time as well, and executed a new, binding homestead insurance policy on the new property.
May 6-7 – Westroms moved their belongings to new home.
Since May 6, numerous people have picked Westrom up and dropped him off at the Lake Mary home, the response says. The family has hosted extended family at the new residence on numerous occasions as well, it adds.
“Once, while being driven back to the Lake Mary residence, Senator Westrom’s driver missed a turn. Senator Westrom, who is blind, noticed the missed turn and was able to correct the driver,” the response says in its effort to establish Westrom’s familiarity with his new residence.
Westrom registered to vote in Douglas County and cast his primary ballot there Aug. 9.
Late effort disqualifying
It was 38 days after Westrom filed his affidavit of candidacy, July 8, that Klingbeil started her investigation into his residency, Westrom’s attorneys say. Fischer became involved one day later.
Their investigation consisted of 18 checks on Westrom’s residency on 10 different days. There were only seven checks on the Lake Mary residence, the response says. On one of those checks, Fischer acknowledges that Westrom’s wife’s car was parked at the Lake Mary home.
In all, they add, Fischer and Klingbeil submitted “a mere 14 minutes of video footage that documents their ‘investigation.’”
It is this delay in pursuing proof of Westrom’s residency that is at the heart of his request to have the Klingbeil and Fischer’s petition thrown out. “Petitioners’ failure to act expeditiously in filing it has caused substantial prejudice to Senator Westrom, election officials, and the general electorate,” they argue.
It is a well-established law in Minnesota that when someone “has not been diligent in asserting a known right from recovering at the expense of one who has been prejudiced by the delay,” they say.
Westrom’s attorneys add, “This Court has ‘repeatedly stressed the need for diligence and expeditious action by parties bringing ballot challenges.’”
Petitioners “were well-aware of the potential residency issue months before,” knowledge that was confirmed when Westrom filed his affidavit of candidacy for state Senate District 12 seat May 31.
“Petitioners’ suspicion of Senator Westrom’s residency necessitated extreme diligence and expeditious action immediately after Senator Westrom filed his affidavit of candidacy,” his attorneys argue. “Waiting over a month to begin any kind of investigation, and over two months to file a petition, after the Senator had publicly announced his intent to run almost six months earlier, is neither diligent nor expeditious action.”
LeBeau and Pachito also argue the investigation done by Fisher and Klingbeil was insufficient.
“In the end, Petitioners’ investigation consisted of a few internet searches, occasionally driving by Senator Westrom’s former home, and once trespassing at Senator Westrom’s new residence. Simply, this could have been done any time in the two months it took to launch this dragnet,” they argued.
The prejudice, or harm, caused by the alleged late filing is possible removal of Westrom from the Nov. 8 ballot. But it also causes problems for “election officials, other candidates, and the Minnesota electorate in general.”
“Petitioners’ decision to wait to file their petition means that there is a strong probability that their claims will not be resolved until after the time that county auditors are legally permitted to begin printing ballots,” they claim.
County auditors need to start working on finalizing general election ballots shortly after the Aug. 9 primary to have them ready by Sept. 23, the first day that absentee ballots can be used, they say. In fact, they say that some counties have planned to have their ballots to the printer as early as Aug. 18.
Another injury caused by the late filing by Klingbeil and Fischer is that Westrom has been forced to rush his response, his attorneys say.
“Petitioners delayed filing their Petition for 69 days, Senator Westrom is thus forced to provide a near immediate response to the petition,” they argue. “Additionally, Senator Westrom has already spent a substantial amount of time, treasure, and energy campaigning for an office that he has a constitutional right to seek.”
“Lastly,” the attorneys for Westrom argue, “this Court ‘cannot ignore the potential prejudice to the electorate in general’ resulting from Petitioners’ delay.” This precedent has been established in Minnesota case law, they say.
Special election required
Should Klingbeil and Fischer be successful in removing Westrom from the ballot, it would require a special election to be conducted for the District 12 state Senate seat.
The removal of a major party candidate from the ballot requires that a special election take place the second Tuesday of February in the year following the election.” That would delay the election until Feb. 14, 2023.
Multiple harms would ensue from such a delay, LeBeau and Pachito argue. First, the residents of District 12 would be without an elected state senator at the start of 2023.
Further, the balance of power in the state Senate has been very close in recent years. The seat held by the District 12 state senator could decide whether Republicans are in the majority or minority to start the 2023 legislative session, they say.
Petition fails to providesufficient evidence
“In total, Petitioners are basing the entirety of their petition on only 10 days of observation where they (either together or separately) visited primarily the former address of Senator Westrom,” LeBeau and Pachito argue.
The video evidence Fischer and Klingbeil submitted to support their case “is based on less time than the average coffee break,” Westrom’s attorneys say.
Further, they point out, past court decisions provide context to what establishing residency entails.
The court has “found that the candidate’s quick and consistent action in finding housing within his new district, even though his physical presence was limited and the housing appeared temporary to an outside observer, was enough to establish residency within the district,” they say.
Further they say, precedent has established that an announcement to move, “the execution of the lease, voter registration, request for mileage reimbursement, and driver’s license application,” all can be used as proof of establishing residency.
In one case where the subject of a petition had “far more sparse” evidence of residency, the court upheld the candidate “had done all that is reasonably possible to establish residency in [the new district] and in fact established such residency.”
“Senator Westrom has gone far beyond what others have done to establish residency. In short order, he found a new residence, moved furniture and various items into it, slept there for the first time on May 7, 2022 with his family, established utilities, changed his driver’s license, and homesteaded the property.
“These actions, as a matter of law, sufficiently demonstrate the requisite physical presence and intent to reside in his new residence within the newly created District,” his attorneys argue.
Petitioners Should be Admonished
In their response, LeBeau and Pachito also say that Fischer violated state law when she entered private property and took videos of the inside of Westrom’s house.
Minnesota’s peeping tom statute states that:
“A person is guilty of a gross misdemeanor who enters upon another’s property, surreptitiously gazes, stares, or peeps in the window or any other aperture of a house or place of dwelling of another, and does so with intent to intrude upon or interfere with the privacy of a member of the household,” they point out.
They also point to what they say is Klingbeil’s admission of guilt. She is quoted in an Aug. 10 Swift County-Monitor News story saying “‘[t]he property said, ‘no trespassing.’ We didn’t care. We did it anyway.’”
Based on the steps they took to collect their evidence on Westrom’s residency, Klingbeil and Fischer both should be admonished by the court, the attorneys argue.
“To permit such action without comment will invite more extreme and potentially dangerous actions in future cases,” they say.