How can Rep. Tabke be seated if he remains in hiding?

Yesterday’s shenanigans at the capitol have been ably covered by my colleagues Bill Walsh and Bill Glahn. Nevertheless, there remains one unanswered question.

Yesterday, Bill G. noted:

During today’s session, no decision was made as to the status of DFL Rep. Brad Tabke (54B, Shakopee). Although not present today, Tabke received the backing of a state judge in a preliminary ruling on his election case. (You will recall that Tabke “won” his election by 14 votes with 20 never-counted votes reported as destroyed.)

There has, subsequently, been chatter among the DFL and their supporters that Minnesota’s House Republicans are “[d]efying…a court ruling.” I am not clear which court ruling they are referring to and would ask for clarification. I suspect that they are referring to the district court judge’s ruling in Tabke’s case.

But House Republicans have not defied this ruling. For one thing, Speaker Demuth said, in her response, that “We will evaluate this lengthy ruling and consider options in the coming days.” They haven’t decided what they will do yet or, if they have, they haven’t confirmed what that decision is.

Secondly, if the House Republicans did decide not to seat Rep. Tabke they would be well within their legal rights to do so. As I noted a couple of weeks ago, when the elections of 1978 resulted in a 67-67 split in the House, the DFL challenged the election of a Republican, Bob Pavlak. The district court found in Pavlak’s favor. The DFL appealed the ruling and the State Supreme Court ruled against Pavlak. But, crucially, it:

…declined to overturn the election result. Article 4, Section 6 of the Minnesota Constitution provides that “Each house shall be the judge of the election returns and eligibility of its own members.” The Court interpreted this as ousting the courts of jurisdiction over the Pavlak case. Section 6, the court held, was “an absolute grant of constitutional power [to the legislature] which may not be delegated to or shared with the courts.” Accordingly, the justices concluded that “we have no jurisdiction to issue a final and binding decision in this matter, and our opinion by statute will be and by the Minnesota Constitution must only be advisory to the House of Representatives.” It was a matter for the House. [Emphasis added]

Indeed, Tabke relied on the precedent of this very case in his response brief in court:

And in his post-trial brief:

Refusing to seat Rep. Tabke might be politically misguided, but it would certainly not be illegal.

Finally, and perhaps most importantly, is the fact that House Republicans could not vote to seat Rep. Tabke even if they wanted to as long as he refuses to show up for work. Following his court win, Rep. Tabke posted a triumphant statement on X at 8:37 a.m., but, come noon, he was nowhere to be found. How are House Republicans supposed to vote to seat a guy who won’t even show up?