On October 27, 2020, United States Supreme Court Justice Neil Gorsuch denied Mr. Kistner's Emergency Application for Stay seeking to delay the Second Congressional District election until February 2021. That means that the race will be decided by the November 3 general election. The docket for the emergency application may be accessed here. A chronological list of events leading up to the decision is recounted below.
On September 24 Minnesota Secretary of State Steven Simon announced that due to the death of Adam Weeks, the Legal Marijuana Now Party's nominee for Minnesota's Second Congressional District, a special election must be held for that seat pursuant to Minn. Stat. § 204B.13. A special election was scheduled for February 9, 2021.
On September 28 Representative Craig announced that she filed a federal lawsuit seeking to invalidate the state statute requiring a special election. Article I, Section 2, of the U.S. Constitution states that "[t]he House of Representatives shall be composed of members chosen every second year by the people of the several states" and 2 U.S.C. § 7 states that "[t]he Tuesday next after the 1st Monday in November, in every even numbered year, is established as the day for the election ... of Representatives and Delegates to the Congress commencing on the 3d day of January next thereafter."
Tyler Kistner sought to intervene in the lawsuit and on October 2 he filed a memorandum opposing Rep. Craig's motion seeking a preliminary injunction barring enforcement of the challenged statute. Mr. Kistner argued that a vacancy in nomination coupled with the challenged statute's postponement of the election creates a "failure to elect" under 2 U.S.C. § 8, which provides that states may determine "the time for holding elections ... for a Representative or Delegate to fill a vacancy, whether such vacancy is caused by a failure to elect at the time prescribed by law, or by the death, resignation, or incapacity of a person elected."
A hearing on the motion for a preliminary injunction to bar enforcement of the challenged state law was held on October 7. On October 9, U.S. District Court Judge Wilhelmina Wright issued an order and opinion allowing Mr. Kistner to intervene in the lawsuit and granting Rep. Craig's motion for a preliminary injunction. The opinion concludes that the plaintiffs are likely to succeed in arguing that the challenged state statute is preempted by federal law. The order bars Minn. Stat. § 204B.13 from being enforced with respect to the Second Congressional District election and orders that votes cast in the November 2020 general election for the Second Congressional District candidates be counted. Mr. Kistner filed a motion with the district court to stay the court's decision pending appeal and that motion was denied on October 13.
Mr. Kistner appealed the decision to the Eighth Circuit Court of Appeals and the case number on appeal is 20-3126. Mr. Kistner filed a motion with the Eighth Circuit Court of Appeals seeking to stay the district court's order pending appeal and to expedite consideration of the appeal. On October 16, Secretary Simon filed a brief opposing Mr. Kistner's motion to stay the district court's decision, arguing that "a stay would do considerable damage to the public interest, because Second Congressional District voters’ certainty about the date of their congressional election and the effect of votes cast would be compromised." Rep. Craig likewise filed a brief opposing a stay of the district court's decision, stating that "if the injunction below is stayed, not only will thousands of ballots of lawful voters in the November election be discarded, but the people of the 2nd District will be left without a U.S. Representative for at least six weeks." The U.S. House of Representatives also filed a motion seeking permission to file an amicus brief with the court in opposition to Mr. Kistner's motion to stay.
Also on October 16, Mr. Kistner filed a reply brief arguing that the plaintiffs "have no good solution to the problem that voting occurred for weeks under the representation that votes in the Second Congressional race would not count, and it is uncontroverted that voters chose not to select candidates in that election based on that representation." Mr. Kistner contended that the plaintiffs "offer ice-cold comfort from the possibility that voters can 'cancel' their ballots and re-vote, but that itself is a far greater burden on the right to vote than a special election is in February—since many voters will not have heard of the resurrection of the dead election or the possibility of voting a second time (voting twice is usually not wise or encouraged) or the October 20 deadline for doing so. But the bigger problem is that these burdens are borne on an unequal basis: voters who were informed that the race was occurring do not need to do these things for their vote to count; only voters who were told otherwise bear that severe burden. That is 'arbitrary and disparate treatment of the members of [the] electorate.'" (quoting Bush v. Gore).
On October 23, 2020, the Eighth Circuit Court of Appeals denied a motion to stay a federal district court's order requiring that the November 3 general election decide the Second Congressional District race. A copy of the ruling is available here. News coverage of the decision is available from MPR, the Star Tribune, the Minnesota Reformer, KSTP, KARE, and KMSP.