IN SUPREME COURT
Filed: September 28, 2006
Office of Appellate Courts
Mary Kiffmeyer, in her official
capacity as Secretary of State,
Jill Alverson, in her official capacity
S Y L L A B U S
A candidate’s failure to file an affidavit of candidacy with the proper election official before the filing deadline prevents the placement of the candidate’s name on the primary election ballot.
Heard, considered, and decided by the court en banc.
O P I N I O N
In this case we are asked to decide whether a candidate who files an affidavit of candidacy with the wrong election official is entitled to have his or her name placed on the primary election ballot. We conclude that when a candidate fails to file an affidavit of candidacy in the proper place before the filing deadline, the affidavit is ineffectual.
Brian Smith filed a petition, pursuant to Minn. Stat. § 204B.44(d) (2004), asking this court to direct that his name be placed on the ballot for the September 12, 2006, state primary election. By order of August 22, 2006, we denied the petition and stated that a written opinion would follow.
are undisputed. On the afternoon of July
18, 2006, the last day of filing, Smith went to the secretary of state’s office
to file as an Independence Party candidate for legislative House District
58B. Smith completed an affidavit of
candidacy and submitted it along with the filing fee at about 3:30 p.m. After Smith left, employees in the secretary
of state’s office discovered that Smith had filed with the wrong election
official. House District 58B is located entirely
The following day, the secretary of state delivered Smith’s affidavit and filing fee to the Hennepin County Auditor. A representative of the auditor subsequently informed Smith that the auditor’s office could not accept his affidavit of candidacy because it had not received the affidavit before the close of filing. Smith’s affidavit and filing fee were returned to the secretary of state, who returned the fee to Smith.
Minnesota Statutes § 204B.09, subd. 1(d) (2004) provides:
Affidavits and petitions for offices to be voted on in only one county shall be filed with the county auditor of that county. Affidavits and petitions for offices to be voted on in more than one county shall be filed with the secretary of state.
Subdivision 1(c) states:
“No affidavit or petition shall be accepted later than 5:00 p.m. on the
last day for filing.”
80 years ago this court held that the statutory deadline for filing an
affidavit of candidacy is mandatory, and an affidavit of candidacy filed after
expiration of the filing period “is ineffectual for any purpose.” State
ex rel. O’Hearn v. Erickson, 152
statutory filing deadline, the requirement of Minn. Stat. § 204B.09,
subd. 1, that an affidavit of candidacy “shall be filed with” a particular
election official is mandatory. See
The time and place of filing nomination papers cannot be separated. In order to be timely, the papers must be filed in the proper place. If the papers are initially filed in the wrong place, the error must be corrected and the papers filed in the right place within the filing deadline. * * * [W]e view [the statute] governing the time of filing and [the statute] governing the place of filing nomination papers * * * to be mandatory. Failure to timely file the papers in the proper place prevents the candidate’s name from being placed on the ballot.
ex rel. Ahlgrimm v. State Elections Bd., 263 N.W.2d 152, 157 (
Smith acknowledges that he mistakenly believed he was to file for office with the secretary of state but argues that when he submitted his affidavit, the secretary of state should have ensured that he was filing it with the proper election official. Alternatively, Smith contends that when the error was discovered after he left, either (1) the secretary of state could have forwarded his affidavit to the Hennepin County Auditor, electronically or by courier, or (2) the auditor could have accepted the filing in the secretary of state’s office as timely so long as it reached the auditor within a short time.
Minnesota Statutes § 204B.44(d) only provides a remedy, however, for a “wrongful act, omission, or error” of an election official. We have held that in enacting the statute:
[T]he legislature intended to protect potential candidates for public office from the errors and omissions of those enumerated persons charged with properly completing the procedural and mechanical duties attendant to the election process. Nowhere, either expressly or by implication, does it appear that the legislature contemplated the use of this remedy to correct errors or omissions resulting only from the candidate’s inadvertence during the filing procedure.
v. Johnson, 311
statutes prescribing the duties of the secretary of state concerning affidavits
of candidacy do not include ensuring that the affidavit is filed with the
proper election official.
We conclude that a candidate’s failure to file an affidavit of candidacy with the proper election official before the filing deadline prevents the candidate’s name from being placed on the primary election ballot. Therefore, we hold that petitioner Brian Smith is not entitled to have his name placed on the primary election ballot for House District 58B.
 We note that a brochure issued by the Secretary of State’s Office regarding filing for office recites the place of filing as provided by Minn. Stat. § 204B.09, subd. 1(d).