Secretary of State Simon’s quorum argument cites inapplicable rules

On one level, the dispute in the Minnesota House of Representatives this week is straightforward: Does a “quorum” — which is a necessary precondition for the House to do business — consist of a majority of the members of the House or a majority of the House’s seats?

If it’s the former, as the Republicans contend, then there are, as Secretary of State Steve Simon admitted on Tuesday, “133 certificates of election on file” and 67 is a quorum. If it’s the latter, as the DFL contend, then 68 is required for a quorum, which neither side has.

Sec. Simon, for the DFL, argues for 68. In a letter dated January 10, 2025, he quoted Mason’s Manual of Legislative Procedure, at §501, as saying that:

…the number of which such assembly may consist and not the number of which it does in fact exist, at the time in question, is the number of the assembly, and the number necessary to constitute a quorum is to be reckoned accordingly…

This would seem to support Simon and the DFL’s contention that it is seats that count towards a quorum, not members, so a quorum is 68.

Not so fast! In a fascinating article on the current situation, James J. Heaney takes a deep dive into this issue (and several others) and casts doubt on Sec. Simon’s argument.

Here is the relevant passage from the 2020 edition of Mason’s Manual of Legislative Procedure:

Heaney argues that “Simon’s attempt to apply this passage of Mason’s to Minnesota…has two problems.”

The first is that “Mason’s Manual is not quoting the first part of Cushing’s rule,” which reads:

When the number, of which an assembly may consist, at any given time, is fixed by constitution, and an aliquot proportion of such assembly is required in order to constitute a quorum,…

So, Heaney argues:

…Cushing’s rule applies only to legislative bodies where the number of members is fixed by the constitution. It is entirely possible that the legislative bodies which follow Cushing’s rule (the majority) do fix their membership numbers in the constitution. However, Cushing’s rule doesn’t apply to Minnesota, where our membership number is set by statute. Minnesota’s membership number is set by MN Stat. 2.021, as required by MN Constitution Art. IV, Sec. 2. The fact that Mason’s itself is truncating the Cushing quote, not Sec. Simon, should make us think better of Steve Simon, but it doesn’t change the underlying problem that the Cushing rule Mason’s cites doesn’t apply to our state!

Second, he notes that “The old Mason’s Manual (1957-2010) held unambiguously that you counted members, not seats.” Indeed, it read:

The total membership of a body is to be taken as the basis for computing a quorum, but, when there is a vacancy, unless a special provision is applicable, a quorum will consist of the majority of the members remaining qualified.

And we have a vacancy in seat 40B, where the DFL got caught cheating and their victorious candidate was ruled ineligible. This is why we have the 133 elected members of the House Sec. Simon announced on Tuesday, not 134. This supports the GOP’s argument and a quorum is 67. “This was a clear rule which would (probably) be binding, if it still applied,” Heaney writes. “By contrast,” he goes on:

…the new Mason’s Manual does not set a clear rule. It simply says that most legislatures follow Cushing’s rule and some follow Mason’s old rule. This is a menu of options, not a rule. Faced with ambiguous language and a legislative manual that expressly acknowledges both the ambiguity and two different legitimate ways to resolve it, who should resolve the ambiguity? The legislature itself, which “determines the rules of its proceedings”! I might be persuaded there’s a road to a court judging this, too. But not the Secretary of State, acting unilaterally, in his capacity as a ceremonial presiding officer.

Quite so. If, then, Minnesota’s Supreme Court rules on the quorum question either way, it will be merely choosing from “a menu of options” and usurping the power of the House to “determine the rules of its proceedings” which is enshrined in the state’s constitution.

Heaney is no partisan. He writes: “On balance, then, I do still think that the GOP has the edge on the quorum question, but it remains close, and I haven’t read all the case law yet,” which is hardly Al Pacino at the end of …And Justice for All. But, he concludes:

The 2025 DFL coup attempt did not become a coup attempt because of their opinion on the quorum rules, but because of their anti-democratic behavior leading up to, and illegal behavior following, Sec. Simon’s ruling on 1/14.

I will bring you more on that in the next few days. If you can’t wait, just read Heaney’s excellent article.