It might seem obvious, but Minnesota is alone at the top — or the bottom — of one legislative superlative: the first state to ever begin a session without clear partisan majorities in both the House and Senate.
Legal interpretations aside as to whether the 67 votes Republicans will have Tuesday in a 134-seat House is a majority or not (Republicans say it is, DFLers say it isn’t), the House doesn’t come close to meeting the standard of “clear,” as tracked and confirmed by the National Conference of State Legislatures.
And the death of Sen. Kari Dzeidzic last month from cancer leaves the Senate at 33-33 for the first three weeks of the session, at least.
So who’s in charge when no one is in charge? Absent creation of a co-op or declaration of a self-governing collective, the political situation is, in a word, fraught.
First, a summary (take a deep breath here):
The November election left the Senate with a 34-33 DFL majority after that party defended its hold of the only seat on the ballot. It also left the House with a 67-67 tie for just the second time ever and led to power-sharing agreements between DFL leader Melissa Hortman and GOP leader Lisa Demuth.
One of the DFL winners — Curtis Johnson — apparently didn’t actually live in the district he sought to represent, despite having a mostly empty apartment where he only made cameo appearances. A judge said it wasn’t enough and declared the seat vacant.
Because there will now be only 66 DFLers available to be sworn in Tuesday, Demuth says the deal is off and she’ll be the sole boss of the House.
A special election Gov. Tim Walz called for the vacant House seat on Jan. 28 might not meet the rules for such elections, and the Supreme Court will hear arguments on Jan. 15 to see if the election is premature. Both the Dzeidzic Senate seat and open House seat are in safe or safe-ish DFL districts.
But wait: There’s one other House seat in contention where the DFL must prevail to preserve the tie. The Shakopee-centered district is held by DFL Brad Tabke by 14 votes, but a judge is deciding whether 20 ballots tossed by mistake by election officials should force a re-vote in a race.
And meanwhile, House GOP leadership has more-than-threatened to use the House’s constitutional authority to be the final judge of its election to deny Tabke his seat, regardless of what the judge says. And DFLers have more-than-threatened to make themselves scarce Tuesday, arguing that it takes 68 voting members to make up a quorum and their absence means the House cannot be convened at all. No House in session = no vote to make Demuth the only speaker of the House and no vote to deny Tabke his seat, even if the court rules in his favor.
Secretary of State Steve Simon, who by statute opens the House at noon Tuesday and then steps aside once a quorum is present and that quorum elects a speaker, says it’ll take 68 votes to proceed. If the DFL member stay away, Simon said he’ll declare the House not in session and adjourn until Wednesday.
House GOP members are outraged and are suggesting they’ll proceed regardless and move to elect Demuth and organize the House. Neither party questions that Demuth can be elected speaker with a majority of those present — 67 votes for now. What they are arguing over is whether the quorum needed to convene the House can be a lower number than what is needed to pass laws — 68 votes. Here is the House GOP's letter in response to Simon.
Republican party officials are threatening to launch recall petitions against DFLers and have launched social media campaigns against some who don’t show up at the House chambers Tuesday. House GOP members sound like they will act as though a quorum is present and proceed. DFL members say they will be working, and collecting pay, just not in the House chambers.
It is possible the issues (whether 67 is a quorum or whether actions taken by the House GOP are legal) will end up at the state Supreme Court, which might step in or might declare that under separation of powers the fight is up to the Legislature — an independent branch of government — to resolve. Just because lawmakers might wish to keep digging the constitutional hole they are in doesn’t mean the Supreme Court is obligated to jump down there with them.
Then on Sunday, the House DFL members met at the state History Center to be sworn into office by a retired judge. While state law says members are sworn in after convening on the first day, DFLers say it does not require it and said there are examples of it happening at other places, and times. The House GOP was, not surprisingly, unhappy.
Go ahead and exhale now.
Some observations
Lawmakers never negotiate in the media, unless they do: Most of last week was spent holding press conferences, conducting both scheduled and impromptu interviews, and sending out press release after press release. That doesn’t even include the social media battles being waged by electeds and non-electeds alike.
All of that was meant both to influence the public and to show the more-radical members of the DFL and GOP caucuses that their leaders are fighting the fight and not surrendering. But it does little to further the negotiations that are the only real way to resolve the conflict.
The devil can quote scripture for his purpose and lawmakers can quote Mason’s Manual of Legislative Procedure: Which is it? Does it take 68 votes for a quorum as Democrats say— a majority of the 134 possible seats? Or, does it take just 67 seats as Republicans say — a majority of the current 133 representatives who can show up Tuesday with election certificates in hand?
The answer is … yes. Without clear language in the state constitution or rules, both interpretations have evidence to cite to support their positions. Democrats quote the notation in Mason’s that says a majority of the 50 states would say 68 votes, and a minority would say 67 votes. In a lengthy letter issued Friday, Simon says that while there are no court cases directly on point, most others suggest that 68 would be needed.
The devil can quote scripture for his purpose and lawmakers can quote Mason’s Manual of Legislative Procedure.
Republicans respond with their own citations, including those minority states that look at the number of members actually elected, not the number that can ultimately be elected. Congress too uses that interpretation.
There is even a citation from the state constitutional convention in 1857, first uncovered by cannabis legalization lobbyist and archive researcher Kurtis Hanna, that supports the GOP position.
He should have read more carefully.
In fact, the framers of the Minnesota Constitution rejected both Steve Simon’s intepretation and his profoundly anti-democratic policy choice.
Is this all for show? It is said that wolves circle three times before lying down to sleep. Politicians too must parade before settling down to serious work. Was last week the political manifestation of circling wolves before they lay down together and negotiate? Or are today’s politics such that the fight is more important than the resolution?
Minnesota House Republicans have launch a campaign targeting DFL politicians refusing to show up on Tuesday.
This Legislature has many recent examples of fiery rhetoric and apocalyptic predictions becoming agreements in days or even hours. But it is hard to negotiate with someone who doesn’t want anything. As of this week, the GOP in the House doesn’t feel the need to negotiate while the House DFL does. Demuth and company know they can’t pass laws with a DFL Senate and Walz in the governor’s office. But with control they can hold hearings and launch a planned fraud committee. That power remains once the House is organized even if the DFL wins the Johnson seat and retains the Tabke seat. If Demuth can be elected speaker by herself, that can only be undone by a majority vote which the DFL won’t have for two years.
It should be noted that Republicans can act to not seat Tabke even with a 67-67 House because it would only take a majority of those present and Tabke, the subject of the challenge, could not vote.
The House GOP can keep DFL bills from the Senate from becoming law — a veto they have with a tie as well. That could change with a ruling in the Tabke case, a lengthy DFL boycott or other not yet imagined scenarios. But for now, Republicans have little to gain from a settlement.
Meanwhile, over in the Senate where a 33-33 tie exists until a special election can be held, GOP and DFL leaders announced an amicable agreement to share power until then. Co-presiding officers, co-committee chairs and equal numbers from each party on all committees. While the House is doing, who knows what on Tuesday, the Senate will pass a resolution putting the deal in place.
Appendix
What the constitution and state laws say about legislative quorums
Constitution
Sec. 13. Quorum. A majority of each house constitutes a quorum to transact business, but a smaller number may adjourn from day to day and compel the attendance of absent members in the manner and under the penalties it may provide.
Sec. 22. Majority vote of all members to pass a law. The style of all laws of this state shall be: "Be it enacted by the legislature of the state of Minnesota." No law shall be passed unless voted for by a majority of all the members elected to each house of the legislature, and the vote entered in the journal of each house.
Section 1. Impeachment powers. The house of representatives has the sole power of impeachment through a concurrence of a majority of all its members. All impeachments shall be tried by the senate. When sitting for that purpose, senators shall be upon oath or affirmation to do justice according to law and evidence. No person shall be convicted without the concurrence of two-thirds of the senators present.
Section 1. Amendments; ratification. A majority of the members elected to each house of the legislature may propose amendments to this constitution.
Statutes
2.021 NUMBER OF MEMBERS
For each legislature, until a new apportionment shall have been made, the senate is composed of 67 members and the house of representatives is composed of 134 members.
3.02 EVIDENCE OF MEMBERSHIP
For all purposes of organization of either house of the legislature, a certificate of election to it, duly executed by the secretary of state, is prima facie evidence of the right to membership of the person named in it.
3.05 ORGANIZATION
At noon of the day appointed for convening the legislature, the members shall meet in their respective chambers. The lieutenant governor shall call the senate to order and the secretary of state, the house of representatives. In the absence of either officer, the oldest member present shall act in the officer's place. The person so acting shall appoint, from the members present, a clerk pro tem, who shall call the legislative districts in the order of their numbers. As each is called, the persons claiming to be members from each shall present their certificates to be filed. All whose certificates are so presented shall then stand and be sworn.
3.06 OFFICERS AND EMPLOYEES
Subdivision 1. Election. Thereupon, if a quorum is present, the houses shall elect the following officers, any of whom may be removed by resolution of the appointing body.
The senate shall elect a secretary, a first and a second assistant secretary, an enrolling clerk, an engrossing clerk, a sergeant-at-arms, an assistant sergeant-at-arms, and a chaplain.
The house of representatives shall elect a speaker, who shall be a member of the house of representatives, a chief clerk, a first and a second assistant clerk, an index clerk, a chief sergeant-at-arms, a first and a second assistant sergeant-at-arms, a postmaster, an assistant postmaster, and a chaplain.
3.96 QUORUM AND VOTE REQUIREMENTS
In the event of an attack the quorum requirement for the legislature is a majority of the members of each house who convene for the session. If the affirmative vote of a specified proportion of members of the legislature would otherwise be required to approve a bill, resolution, or for any other action, the same proportion of the members of each house convening at the session is sufficient.
This article first appeared on MinnPost and is republished here under a Creative Commons license.
Photo: DFL House Speaker-designate Melissa Hortman, left, said her members would be doing things such as meeting with constituents, preparing legislation, making appearances. They just wouldn’t show up in the House chambers. Credit: MinnPost photo by Peter Callaghan.
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