Chambers of the Minnesota Supreme Court. Courtesy Minnesota Judicial Branch.
The Minnesota Supreme Court will hear oral arguments Thursday to get to the bottom of one question: How many Minnesota House members need to be physically present at the Capitol to legally conduct business?
Minnesota House Democrats and Minnesota Secretary of State Steve Simon are suing House Republicans and asking the Supreme Court to find that Republicans aren’t able to elect a speaker or conduct any other business without 68 members present.
The pair of legal filings, one from House Democrats and the other from Simon, originated from an intense power struggle between Republicans and Democrats over control of the House last week. On the first day of session, Jan. 14, all 66 House Democrats boycotted the session — and have stayed away from the Capitol since — to prevent Republicans from taking control of the chamber and refusing to seat a Democrat in a contested south metro election.
As the presiding officer on the first day of session, Simon called the roll, determined the 67 Republicans present weren’t enough for a quorum and told GOP members they did not have the constitutional authority to meet. He then gaveled the session closed and took a seat to the left of the podium. House Republicans plowed ahead anyway; Rep. Paul Anderson — the oldest member present — served as the presiding officer until they unanimously elected Rep. Lisa Demuth, R-Cold Spring, as the House speaker.
Democrats and Simon sued, arguing that Republicans never had a quorum to legally take those actions.
How and when the Minnesota Supreme Court will rule is unknown, but the justices could give some hints during oral arguments. Here’s what you need to know about the cases.
What’s a quorum?
A quorum — a Latin term meaning “of whom” — is the minimum number of members present needed for a legislative chamber to conduct business. The Minnesota Constitution states that the “majority of each house constitutes a quorum to transact business.”
The problem in this case: It doesn’t say specifically what that number is.
Democrats and Simon are arguing that a quorum is 68, while Republicans argue it’s 67. Democrats say that the court should look at the plain language of the Constitution, i.e. the definition of a majority is the number equaling more than half of a total. Because there are 134 House members total, a majority is 68 members, Democrats and Simon argue.
Republicans, meanwhile, argue that 67 members constitutes a quorum because one seat is vacant. After the November election, the House was set to be tied 67-67, but a judge ruled Democrat Curtis Johnson didn’t meet the residency requirement and was ineligible to hold office.
As of right now, there are 133 House members, so Republicans argue that 67 members is a quorum.
To complicate matters further, the Supreme Court last week ruled that Gov. Tim Walz wrongly called a special election for the Roseville-area District 40B seat that Johnson was forced to surrender. Minnesota Solicitor General Liz Kramer, in a brief submitted Wednesday, wrote that the court’s ruling calls into question whether there was a vacancy when Simon presided over the session on the first day.
“By concluding that statute 204D.19 governs the timing of the writ, the premise appears to be that the representative-elect could not have surrendered his seat before the legislative session and that his election certificate remained valid until the House acted,” Kramer wrote “The Court appears to have decided that no vacancy existed when the legislative session began on January 14.”
If there was no vacancy when Simon called the roll, then there were 134 members, requiring 68 for a quorum.
Republicans say the contest of Johnson’s residency and subsequent court decision against him in December created the vacancy, meaning there were 133 members when Simon gaveled in the House, requiring just 67 for a quorum.
This sounds messy. Can the court decide to keep out of it?
Yes. Republicans argue that the Supreme Court has no business butting into the dispute because doing so would violate the principle of the separation of powers.
“(House Democrats’ and Simon’s) contrary theory would turn this court into the permanent referee of the Legislature’s internal affairs, and thereby do incalculable damage to our state’s democracy,” Republicans wrote in their response to the House DFL and Simon’s petition.
But the DFL and Simon argue that it’s entirely proper for the Supreme Court to insert itself in this dispute. They’re not asking the court to weigh in on the political din, they argue, but merely seeking an answer to a question about how to interpret the state’s constitution, which is exactly what the court was created to do.
“While courts are understandably reluctant to wade into matters involving the Legislature, addressing these narrow questions does not intrude on separation of powers,” Minnesota Solicitor General Liz Kramer wrote on behalf of Simon.
Will everything go back to normal after the court issues its ruling?
Not exactly. Both Republicans and Democrats said they will abide by a Supreme Court ruling, and the court is expected to issue an expedited ruling, but even that is unlikely to quell the dispute.
There’s still an empty House seat and Walz hasn’t called another special election to fill it yet. House DFL leader Melissa Hortman said she anticipates the special election will take place on March 11. The seat is DFL-leaning, so the special election is expected to bring the chamber back to a tie, 67-67.
If the Supreme Court rules in the Democrats’ favor and says 68 members are needed for a quorum, then Demuth won’t be speaker and everything Republicans have done since Jan. 14 would be invalidated.
Hortman — assuming she can keep her caucus united — can then threaten to continue to withhold a quorum unless Demuth agrees to negotiate a power-sharing agreement.
A major piece of the puzzle is the election in the south metro won by Rep. Brad Tabke by 14 votes in a contest marred by 20 missing ballots.
Hortman has said that she hasn’t received confirmation from Republicans that they will refrain from unseating Tabke, a Shakopee Democrat. A judge last week ruled that despite the missing ballots, Tabke would have won anyway and there’s no need for a special election. Demuth has previously said that her caucus won’t seat Tabke without a do-over.
The Minnesota Constitution grants the two legislative chambers the power to seat members and rule on election contests, so House Republicans are empowered to ignore the judiciary.
In addition, if the tied House were to bring up a motion to expel Tabke, Tabke himself would be prohibited from voting in the matter, and Republicans could successfully unseat him with a simple majority of votes.
Unlike a bill that needs 68 members to pass, Republicans could successfully oust Tabke — if they were to remain united — with 67 votes.
Removing an elected member who won an election recount and a court case has never happened in Minnesota history.