Capitol Watch: Democrats plan to sabotage Minnesota House
The state could be heading for a constitutional crisis Tuesday if all 66 Democratic Representatives-elect fail to show up, get sworn in, and fulfill their duties. At this writing, the team move for Democrats appears to be to abdicate their collective duty to prevent the House from achieving a quorum to conduct business. Their goal is to prevent House Republicans from using their 67-66 advantage to elect Rep. Lisa Demuth as Speaker of the House. Why do Republicans have a 67-66 advantage? Because the Democratic candidate who ran in Roseville and Shoreview perjured himself on his affidavit of candidacy when he swore that he lived in the district he was trying to represent.
We will analyze the impact of the Democrats’ decision to boycott the House in the paragraphs that follow, but it’s important to stop for a moment and appreciate how irresponsible and unprecedented it is for an entire caucus to not show up in an attempt to sabotage the legislature. They claim it’s unfair for Republicans to use their majority to elect a speaker. But the majority exists because they cheated in District 40B and now the people in Roseville and Shoreview must go through the trouble and expense of another election to fix their mistake.
Some states use a coin toss to determine control of a legislative body in the case of a tie. Consider the fiasco in District 40B as Republicans winning the coin toss. Agreeing on a power-sharing plan was always going to be a herculean task given the acrimony between the two House caucuses. Having one party in control of the workings of the House is better for the state and more likely to produce a responsible state budget. Remember, the parties are still going to have to work together to pass anything — no one disputes the fact that it takes 68 votes to pass any legislation, including the budget.
We also question if House Democrats have really thought their boycott plan through to the end. At the moment, a special election has been called in District 40B for January 28, 2025. In their best-case scenario, House Democrats will have to spend two full weeks explaining to the public why they are not showing up for work. Their worst-case scenario happens if Republicans prevail in their lawsuit forcing Gov. Walz to wait for an actual vacancy in 40B before calling the special election. If that happens, the election will be delayed another month.
And just how are House Democrats going to accomplish their boycott? The first order of business is the roll call of districts where they ceremoniously hand in election certificates. Next they are all sworn in. The roll is taken for purposes of determining quorum. Will the Democrats show up to get sworn in? You would think that would be necessary in order to get paid. Will they walk out en masse? That will make a devasting visual for the television cameras.
The pressure will grow on all 66 members, especially when the Minnesota Republican Party files recall petitions against them for nonfeasance (not doing their job). A recall petition requires just 25 voters from their district to get started. If the Supreme Court grants their petitions, a campaign can begin to acquire 25% of the vote in the November election for State House. Imagine people at the local Cub Foods asking for signatures on a petition to remove their state representative from office for not showing up.
In either case, Minnesota Democrats are facing weeks, if not months, of life as the minority party in the State House. They say they will be boycotting daily sessions of the House until, at some future point, by winning the 40B special election, they can get back to a 67-67 parity with the Republicans.
House Democrats seem to think that a “delay” to the start of session won’t do any lasting harm and place them in a more favorable partisan position as a co-equal in the chamber. In the meantime, they claim, “Democrats would still meet with constituents and work with staff to draft bills.”
What’s Going to Happen?
At noon on Tuesday, the 94th Legislature of Minnesota will kick off. The numbering is more than just ceremonial. To use the analogy of a business corporation, at noon on Tuesday, the corporate entity known as the 93rd Legislature will cease to exist; the corporation will have dissolved.
The process that begins at Tuesday noon is also more than just ceremonial. For a few minutes or even hours after noon, the House of Representatives will not exist in any legal sense. The process and procedures undertaken will conjure the 94th Legislature into being, ex nihilio. At the end of this multi-step process, the House will be born anew, duly organized, with new membership, ready to conduct business for the people of Minnesota for the next two years.
So, what happens if the conjuring is interrupted in the middle? Can the spell be recast? What if the lifeless body of the 94th Legislature isn’t animated on the 14th? We don’t know, this has never happened before; we are traveling through terra incognita.
Steve Simon’s Role
This is where Minnesota Secretary of State Steve Simon (a Democrat) comes into the picture. State law assigns the Secretary the duty to call the House to order. The statute makes clear that it doesn’t have to be him, “the oldest member present” could serve this role.
The secretary is given this assignment for only a single day, every two years. After the call to order, the statute gives the secretary/oldest member the assignment to appoint a temporary clerk, who will call the roll. That’s it, those are the only two tasks assigned, and just for that single day.
If a quorum is present, the House would then elect a whole host of officers, including a speaker and a sergeant at arms. But without a quorum no elections would take place.
Without an elected sergeant, there is no officer available, or empowered, to compel the attendance of absent members. Democrats intend to boycott this session, specifically to avoid the election of a Republican Speaker.
After that, the law states:
Each house, after its organization, may appoint and at pleasure remove the employees provided for by its permanent rules or recommended by its Committee on Rules.
To restate, before the House organizes, it cannot have any employees. For those first few hours after noon on Tuesday, the House has no employees. So, this idea that, while waiting weeks to elect a speaker, Democrats “will work with staff” is factually mistaken. The House will employ no staff.
As for the elected no-show Democrats, they would not have answered the roll and they would not have been sworn in, so they would not yet be members of the body in a factual sense.
Unilaterally, Secretary Simon issued a letter on Friday describing what he plans to do on Tuesday afternoon.
Simon lays out an 8-item agenda for his temporary speakership on Tuesday, only the first two of which are authorized by statute. He plans to conclude by declaring that a quorum is not present. He then intends to adjourn the House (which he has no power to do, unilaterally) and convene again at 3:30 the following day (which he has no power to do).
To justify his (in)actions, Simon cites a number of authorities, including the Rules of the House. Unfortunately, at this point in the proceedings, the House has no rules, just as it has no employees.
The last time the House convened for its organizing session was January 3, 2023. The Journal entry for that date shows (p. 7) that the adoption of temporary rules does not occur until after officers were elected. It is the adoption of temporary rules that call into life the committees.
Then, on page 16, the House was declared to be “duly organized pursuant to law.” To recap: no quorum, no officers, no rules, no duly organized, no committees, and no employees.
Our Advice for House Republicans
Under the “Simon plan,” the House would somehow come back into session every day at 3:30 with the Secretary of State repeating the steps outlined above until the Democrats decide to return to work. As mentioned, this could take weeks or even months. This is not an acceptable outcome for the state. House Republicans need to act. Once Simon is finished with his quorum declaration, Republicans need to thank him for his service and take over the proceedings. First they should object to his ruling and ask for a vote of the body on the question of quorum. If Simon refuses to recognize that motion, they need to ask him to leave and put the oldest member in the chair to declare quorum, elect a speaker and appoint the officers of the House, including a Seargent at Arms who can be instructed to bring in the absent members.
Rep. Harry Niska, who is slated to become Majority Leader in the House has hinted at their legal theory on quorum through posts on X:
Niska claims the question of what constitutes a quorum was asked and answered by the men who wrote Minnesota’s constitution, contradicting Simon’s opinion. The larger point is House Republicans have an argument that 67 votes is enough to conduct some business, and they should boldly proceed. House Democrats would have to petition the Supreme Court for redress, and the court would be loath to get involved in a dispute like this in the legislative branch of government.
The state needs a functioning House and if the Democrats won’t lead, Republicans should fill the void. Tuesday could be a defining moment in Minnesota politics as one party desperately clings to power and the other shows up to lead.
**** UPDATE ****
As we were writing this newsletter, a rumor was making the rounds that House Democrats already claim to have been sworn in, two days early. According to Blois Olson of Morning Take:
“House DFL members were sworn in by retired Judge Kevin Burke at the MN History Center this afternoon.”
As per Minnesota Statute 3.05, that move sounds both too early and in the wrong place to count. As preemptive moves go, it has a ring of Ft. Sumter about it. Buckle up!