Supreme Court ruling places Gov. Walz in Catch-22

“That’s some catch, that Catch–22,” he observed.

“It’s the best there is,” Doc Daneeka agreed. 

Yesterday, in a unanimous verdict, Minnesota’s Supreme Court ruled that Gov. Walz’s calling of a special election for House seat 40B for January 28 was unlawful. The special election will not, now, be held on January 28.

This situation arose, you may recall, when it emerged that the victorious DFL candidate in that race in November, Curtis Johnson, was not actually eligible to run under state law, as he did not live in the district. Immediately after the district court ruling thus, Johnson “resigned” his seat and Gov. Walz issued a writ of special election for a week from Tuesday.

State law is admirably clear on this. It reads:

The vacancy did result from a successful election contest so the governor had to wait 22 days from the first day of the legislative session — January 14 — to issue a writ calling for a special election, which would have been February 4. He claimed the authority to call one on December 27 for January 28. Secretary of State Steve Simon defended this, which surely casts further doubt on his judgment in these matters. Not surprisingly, given the law’s clarity, the Supreme Court disagreed.

What now?

This decision is something of a bombshell.

At least until the special election is held, the DFL are outnumbered in the House by 67-66. This allows the Republicans to elect a speaker, for example, who can only be removed by a majority vote. Even if they won in 40B, then, the DFL would be denied the trappings of power. This is what their entire strategy is about preventing. Their hope is that a win in 40B will shift the House to 67-67, and allow them to claim an equal share of power. Until then, they want to remain in hiding, claiming to deny the House a quorum, so that the Republican majority cannot get anything done.

It’s a bold strategy, as they say, and it becomes bolder still now that 40B will not be filled on January 28, as planned. The longer the DFLers are in hiding the more untenable this strategy becomes. But when will it be filled?

The law, as mentioned, gives Gov. Walz the authority to issue a writ of special election on February 4:

If a vacancy results from a successful election contest, the governor shall issue 22 days after the first day of the legislative session a writ calling for a special election…

But keep reading:

…unless the house in which the contest may be tried has passed a resolution which states that it will or will not review the court’s determination of the contest. If the resolution states that the house will not review the court’s determination, the writ shall be issued within five days of the passage of the resolution.

One of the first things House Republicans did on Monday was pass that resolution. This would allow Gov. Walz to issue the writ of special election on Monday, January 20, about two weeks earlier. If he really wants to get the seat filled at the earliest opportunity, here is his chance.

But — and it’s a big but — he can only do that by acknowledging the writ issued on Monday and that requires that he recognize the House that issued it as being properly organized, which he has so far denied.

Here is the governor’s quandary: recognize the House, issue the writ, and hold the election early but acknowledge the legitimacy of everything the House has done so far, or refuse to recognize the House, ignore the resolution, and hold the election weeks later.

That’s some catch, that Catch-22.