Amid court challenges and partisan maneuvering, can the Minnesota House even function this year?

Two years ago, Minnesota DFL elected officials began a legislative session with a governing trifecta: control of the House, Senate, and governor’s office. They used that session to pass a sweeping progressive agenda.

When the 2025 session begins next Tuesday, it will look a lot different. There are no clear majorities in either chamber, and House DFLers are threatening to boycott until a previously agreed-upon power-sharing agreement is reinstated. Meanwhile, Gov. Tim Walz is struggling to find his footing after a grueling and unsuccessful vice presidential campaign, further disrupting his administration by shunning his lieutenant governor.

And while the upcoming budget begins with a projected surplus – smaller but still existing – it faces future financial deficits that invite overuse of the term “looming.”

DFL disappointment

Twenty-four months ago seems like a long time ago. On election night, House DFL leadership was disappointed that their majority had turned into a 67-67 tie with Republicans. Seats the DFL were expected to lose were lost, and a few they were expected to win were lost as well. It was a pair of tight results in which DFL candidates prevailed by handfuls of votes that produced the tie. 

The caucus was disappointed but resigned to sharing power. Now a tie would be the House DFL’s fondest hope.

Contested seats

Two seats won by DFL candidates on election night are at issue in the courts. One, held by incumbent Rep. Brad Tabke, is awaiting a court ruling on 20 missing ballots in a race won by just 14. The other seat has already been declared vacant after DFL candidate Curtis Johnson, who ran unopposed in the DFL primary and won easily in November, was found to have not legally resided in the district. It’s a pretty safe DFL district, but a special election is needed to put a person in that seat.

To make things even more interesting, Republicans and their affiliates are challenging the timing of the special election with the state Supreme Court, arguing that Walz’s call for a special election on Jan. 28 was premature. Rather than waiting until the session convened to begin the countdown to an election, Walz acted as soon as Johnson said he wouldn’t pursue appeals. Johnson “resigned” a seat he was never sworn into. Should the Republicans prevail, more weeks would pass before that seat could be filled in a special election.

Denied recognition?

Regardless of the ruling in the Tabke case, DFL House Speaker-designate Melissa Hortman will start the 2025 session next Tuesday in a 67-66 deficit and stay there until the special election in District 40B. And even if Tabke prevails in court, there are some in the House GOP who want to use a constitutional provision to deny him his seat. While it takes 68 votes to pass bills, it would only take a majority of those present to refuse to let Tabke be seated.

Republican Speaker-designate Lisa Demuth of Cold Spring said such a move was possible to preserve the integrity of the election. Only a new election in that district will satisfy Republicans.

That would mean that someone elected by voters, whose election was upheld by the courts, would be blocked from being sworn in by a partisan act. It would also mean that a House GOP caucus that screamed – with good reason – that the way the DFL rammed through legislation on the final night of the 2024 session damaged the institution of the House and created a dangerous precedent is considering a move that very likely would do the same.

While waiting, Tabke is back on the fundraising circuit, asking for funds in case the court rules against him or the GOP denies him his seat.

“Some House GOP members are working to force a special election taking our House seat,” he tweeted. “We need to be prepared.”   

Organizational vs. constitutional majority

Either way, the House GOP will have more votes next Tuesday and can jettison a power-sharing agreement Demuth reached with Hortman and assume sole control of the speakership and committee chairs. Even if the DFL eventually gets those two contested seats filled with DFLers, the House will remain with GOP leadership and committee chairs because once the House is organized, it stays organized until a majority of members change it. A tie vote isn’t enough.

What difference, though, does it make if the GOP has “an organizational majority,” as Demuth called it Monday, but lacks a constitutional majority? They can’t pass bills without at least one vote from a Democrat. But they can convene hearings and conduct investigations and at least get bills to the House floor, forcing DFL members to take votes they might rather not take.

An example of that power was the announcement of a special fraud committee that would have subpoena power to compel testimony of Walz administration officials.

No-shows for session?

That is why Hortman said Monday that her caucus members just won’t show up Tuesday at noon. Once the House is organized, once its members are sworn in, once a speaker and a clerk are elected, the House can do some things with 67 votes. So if the House DFL walkout happened after a speaker was elected, that speaker could try to compel the absent members to attend. But the House can’t organize itself to do any of the above without a constitutional quorum, and that’s a majority of the 134 seats in the House: 68 votes. (Article IV, Section 13 of the Minnesota Constitution states: “A majority of each house constitutes a quorum to transact business…”)

And who would declare whether a quorum is present? State law gives the secretary of state the duty of convening the House on its first day and appointing a temporary clerk. Once the clerk takes the roll and Secretary of State Steve Simon determines a quorum is present, the House can proceed to swear in members and elect officers. Usually, this is a ceremonial duty, but it likely will be much more than that next week. 

“They can’t turn on the lights. They can’t conduct business without a quorum. They can come in, take the roll and leave,” Hortman said.

The recall option

House Republican leader Harry Niska said not showing up for the session could trigger the recall section of the state constitution, which could lead to missing members being kicked out of office. 

“Not showing up is nonfeasance,” Niska said. But the constitutional provision for recall isn’t easy or quick. Someone would need to file a petition with the state Supreme Court outlining the charges. The court would then have to decide if the charges are true and provide sufficient grounds for recall. If so, petitions would require thousands of signatures from voters in the given district. The secretary of state would then need to verify the signatures and schedule an election.

Is acting to deny the House a quorum nonfeasance? Hortman said her members would be doing other things, such as meeting with constituents, preparing legislation, and making appearances. They just wouldn’t show up in the House chambers, something that has been done in other states like Wisconsin, Oregon and Texas as a procedure to slow legislative bodies and win concessions. Hortman compared it to a union who is trying to reach a contract but feels it must strike to force management to bargain.

Will the impasse last?

If all the GOP was planning to do on Day 1 was to elect a speaker, the DFL might not be planning to go there. But to deny Tabke his seat in the body — even should a court rule in his favor in a lawsuit brought by Republicans — takes it to a different level, the DFL leaders said. For the missing 20 votes to have changed the outcome, the Republican candidate would have to have gotten 18 of them in a precinct Tabke carried handily. And his lawyers got testimony from six who were very likely the missing voters who said they voted for Tabke.

“There is no mathematical way his opponent won the election,” said House DFL leader Jamie Long.

The answer to the impasse? Just return to the power-sharing agreement in place before Johnson lost his case, Hortman said.

A true political snafu. And that’s just the House. 

The Senate is also tied

In the Senate, Democrats retained their one-seat majority by easily winning a special election to replace new U.S. Rep. Kelly Morrison of Deephaven. But the not-unexpected death of DFL Sen. Kari Dziedzic last month leaves the Senate tied as well. District 60 is even more DFL-dominated than 40B. However, the election will also take time, and the DFL Senate majority won’t be reinstated until the end of the month.

Normally, one or both of the House members in a district are the likely flagbearers in such a special election. But had Reps. Mohamud Noor or Sydney Jordan ran for and won Dziedzic’s Senate seat, it would have triggered yet another special election and put the DFL in yet another one-seat minority.

What about that burglary case?

But wait, there’s more: On Tuesday, Jan. 14, the first day of the 2025 regular session, a court hearing is scheduled in Becker County to consider motions in the felony case against DFL Sen. Nicole Mitchell, who is charged with burglary at her stepmother’s home in Detroit Lakes.

While Senate DFL leadership has removed Mitchell from her committees and said she is no longer meeting with other DFL members when they caucus, House Majority Leader Erin Murphy has said Mitchell deserves due process and will remain a voting member of the Senate at least until resolution of her case.

While a trial is scheduled for the end of January, delays have been frequent in the Mitchell case and could occur again. If she either pleads guilty to or is convicted of a felony, it would bring the recall provision of the constitution into play. In addition to misfeasance and nonfeasance, one legal ground for recall is “conviction during the term of office of a serious crime.”

When a shutdown’s a shutdown

The one piece of legislation that must pass this session is a two-year budget. Absent that by July 1, there is no money to operate state government, and it essentially shuts down. 

In the past, governors have asked the courts to authorize funding for emergency and essential services. Special masters were appointed to decide which was which. But a 2017 Supreme Court ruling called that into question.

“The language of Article XI, Section 1 of the Minnesota Constitution is unambiguous: ‘No money shall be paid out of the treasury of this state except in pursuance of an appropriation by law,’” wrote Chief Justice Lorie Gildea for the majority in the 6-1 ruling in The Ninetieth Minnesota State Senate v. Mark B. Dayton.

“The purpose of this provision in Article XI is ‘to prevent the expenditure of the people’s money without their consent first had and given,” Gildea wrote, quoting from a 1914 court ruling. “Article XI, Section 1 of the Minnesota Constitution does not permit judicially ordered funding for the Legislative Branch in the absence of an appropriation.”

It is a different court now, but that ruling suggests that a shutdown will be an actual shutdown.

Is anything bipartisan anymore?

Even a search for issues that the GOP and DFL agree on could be fleeting. On Friday, Walz released a package of executive moves and bill requests to battle fraud. It was his latest response to the theft of government money in a child food program that intensified during the COVID-19 pandemic and a more recent investigation into abuse of a program to provide autism services.

Walz’s proposal would create a new fraud unit in the Bureau of Criminal Apprehension and ask for increased criminal penalties for theft of government money and more staffing for Medicaid fraud units in the office of the attorney general. This had been a major campaign issue for Republicans, and Walz anticipated criticism.

“We want them to help us if they’ve got good ideas,” Walz said. “We don’t need to find a fight when there’s not a fight available. We agree with you. There’s no upside in having fraud in state government.”

Whatever Walz was selling, though, Republicans weren’t buying.

“Creating a fraud bureau overseen by the same administration that allowed over a billion dollars in fraud means today’s executive action is nothing but smoke and mirrors,” said Demuth.

Added House Minority Leader Mark Johnson: “The executive action taken today by Gov. Walz is too little and too late.”

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Editor’s note: Peter Callaghan wrote this story for MinnPost.com. Callaghan covers state government for MinnPost. 

This article first appeared on MinnPost and is republished here under a Creative Commons license.

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