The Minnesota Legitimacy Crisis Is Over!
...but the stalemate continues.
This is Part III of my unexpected series on the Minnesota Legitimacy Crisis. Part I described the crisis and Part II reviewed the court case.
The good news is, everyone finally agrees about whether the Minnesota House of Representatives currently exists or not!
The bad news is, it doesn’t.
The Minnesota Supreme Court heard oral arguments last week and issued a brief order on Saturday. The order is an unsigned, apparently unanimous order (6-0 with one recusal), with a written opinion to follow in a few months. The order held three things:
FIRST, it held that Secretary of State Steve Simon had standing to bring the question into a courtroom, since putative Speaker Demuth had ousted him from a ceremonial position as presiding officer of the House. The court does not hold that Rep. Melissa Hortman had standing or that she didn’t, because it did not need to reach the question once it decided Simon had standing. (However, the very fact that the court resolved the standing question this way suggests that the court considered Hortman’s argument for standing questionable at best.) I think all this is correct. Indeed, I said in the preview last week that I thought Hortman had no standing but Simon did.
SECOND, it held that the supreme court had the authority to rule on this question. I probably would have ruled the other way, because it seems to me that the House should decide its own rules. After all, this whole dispute could have been settled by a simple majority vote on the House floor. Since the true meaning of “majority” in this section of our constitution was so very unclear, it would have been particularly appropriate for the courts to butt out. After oral arguments, I was optimistic that the justices were thinking the same thing.
However, since the Democrats refused to show up at all, the question here is whether the House exists in the first place. When a co-equal branch breaks down completely like that, it is not crazy for the court to decide that it needs to at least announce its view of whether its counterpart currently exists or not. (Indeed, Mason’s Manual Sec. 73.6 says, “The courts have jurisdiction to decide whether the organization of a house of a legislature has been made in violation of the constitution.”) If you get too committed to keeping the judiciary out of the legislature, you end up saying that the courts can’t do anything to stop what happened in 1971.
(“What happened in 1971, James?!”)
After a tie in the state senate, Lieutenant Governor Perpich, insanely, decided that he had an inherent power, as presiding officer,1 to cast tiebreaking votes. Absolutely no statute or constitutional provision gave him that power, and the Minnesota Constitution’s strict separation of powers expressly forbids members of the executive branch from ever exercising legislative power. Having assumed this power, Perpich then cast a series of (flagrantly unconstitutional) tiebreaking votes that handed power to one party. The defeated party sued, arguing, hey, the other side just got into power on the backs of a fake vote, and we couldn’t protest because the fake voter voted against us, so we had no recourse under senate rules. In State ex rel. Palmer v. Perpich, the Minnesota Supreme Court very reluctantly found it had an obligation to rule on the question, and ruled against Perpich.2
THIRD, the court ruled that, in the Minnesota Constitution, “a quorum requires a majority of the total number of seats of each house,” not a majority of current members. As I explained last week, I think this is wrong. The precedents favored the (putative) House more than it favored the quorum-busters, and this should have gone the other way.
However, as I also acknowledged last week, it is a close question. Both sides cited some good precedents. Mason’s Manual, which previously supported the “majority of members” standard, recently switched to allowing both. It even suggested that most jurisdictions use the “majority of seats” standard (although, as Prof. Ilan Wurman argued in his brief, this does not appear to be true). This change to Mason’s happened in 2021, at the behest of a national committee, and was not aimed at harming Minnesota Republicans. Nevertheless, this change deprived Republicans of a powerful weapon in their favor and put them on the defensive instead.
It is always tempting, when you lose a court case—especially facing a court of the opposite party—to accuse them of base motives and corrupt reasoning. This is sometimes appropriate, and I have not held back from doing so when the moment called for it. Indeed, about this time last year, I was accusing this very court of using judicial chicanery to avoid a politically uncomfortable ruling. (I stand by that accusation.)3 However, sometimes, people can approach the same body of evidence in good faith and walk away with different conclusions. Courts face genuinely difficult questions of law. The law here was unusually unclear and susceptible to multiple interpretations. Moreover, bluntly, it is hard to accuse SCOMN of rank partisanship when they just delivered a unanimous victory to Republicans in ruling that Gov. Walz’s special election writ in District 40B was issued prematurely.
My side lost, and it shouldn’t have, but I don’t think it was a cheat.
The Minnesota Supreme Court only decided these three questions, deliberately avoiding all other issues the parties raised. That means that the Court did not rule on anything else.
The Minnesota House GOP, in a gracious act of interbranch comity for which it will get exactly no credit, accepted the Minnesota Supreme Court’s ruling against it. The putative House might have asserted its constitutional right to decide its own rules, stood by the arguments it had presented before, and deepened the constitutional crisis. Instead, it acquiesced. Their decision to accept the Supreme Court’s ruling and (essentially) dissolve themselves brought the legitimacy crisis to an end.
In a nation or state about to collapse into civil war, they would not have done this. They would have continued claiming to be the legitimate house, tarred the Minnesota Supreme Court as a partisan toy, and ignored its ruling. At least 30% of Minnesota’s voters would have accepted the GOP’s position (after all, legally speaking, I do still think the GOP had the better legal arguments!), and we would plunge further ahead into uncharted waters. The GOP’s acquiescence is a sign of health in our republic.
On the other hand, a healthy republic would never have gotten this far down the rabbit hole in the first place. Both parties, but the DFL in particular, played brutal hardball, and the fact that it “worked” means there are a few more people today who think the GOP are cucks for accepting the ruling than there were yesterday. They will vote in primaries to try to prevent the future GOP from accepting a ruling like this again. Not great.
This is all long-term legitimacy crisis stuff, though. It’s my hobbyhorse, but maybe not what you came here to find out.
What Happens Next?
Now that they have the supreme court’s blessing, the DFL appears to be planning to continue quorum-busting until the special election in District 40B. According to statute (204D.19.4), the governor cannot schedule the election until “22 days after the first day of the legislative session.” The legislative session, by statute, was scheduled to start January 14, 2025, and 22 days after that is February 5. Gov. Walz will therefore schedule the election as close to February 5 as he can. I think that will put election day in early March, given the need to print ballots and hold mandatory early voting. After election night, the winner’s win still needs to be certified, but I expect Walz will make that happen as fast as possible, too. I should look into this in more detail, but the District 40B election winner will probably be in office by around mid-March-ish. Then Democrats can report to the Capitol, at long last, with 67 votes, just enough to match the Republicans’ 67 votes. Everyone I am reading is talking about the standoff ending in mid-March-ish.
However, I am not convinced. Once the Democrats return with (probably) 67 votes, Republicans will likely challenge Brad Tabke’s election, prolonging the standoff even further.
Tabke was ruled the winner in his November election by just 14 votes—in a race where 20 votes went missing. A court found most of the voters whose votes were lost, asked who they voted for, deemed that sufficient, and ruled that Tabke had won. Per the state constitution, however, final judgment in the case belongs not to the courts, but to the state House, which is entitled (if it chooses) to hear the challenge, vacate Tabke’s seat, and order a new election. Tabke cannot vote in this challenge, so, if all Republicans vote to vacate his seat and all Democrats vote to confirm his win, Tabke will be sent packing, 67-66. (However, I have heard rumors that the GOP caucus does not have the votes to do this, because some in the caucus believe Tabke should be certified the winner.)4
If that were to happen, then I guess the Democrats would once again withdraw from the legislature, denying quorum in order to prevent Republicans from acting with their working majority.5 They would return only when the new election in Tabke’s district was over. That election could easily be won by the Republican challenger, thus giving the GOP an outright majority, or it could go to Tabke again, affirming the tie in the chamber and forcing the GOP to accept a power-sharing agreement. Either way, though, if Tabke gets challenged and booted (perhaps a big if),6 this stalemate could continue into… what? Late April? Early May?
The session ends May 19. The legislature must pass (and Gov. Walz must sign) a two-year state budget before then. A three-month stalemate seems less than optimal. The Democrats could, obviously, end the stalemate by reporting to the state capitol and providing the legislature with a quorum to begin work. (The Republicans would then be able to set the rules and elect the speaker.) The Republicans could also end the stalemate by consenting to a power-sharing agreement with the Democrats, surrendering the speakership, compromising on the rules, and generally treating the House as if it were tied, even though it is not (currently) tied.
Let us assume, however, that neither party will do those things, and will instead try to force the other’s hand. Let us further assume that the Democrats, as the current minority party, have exactly one card to play: denial of quorum, which they are already playing for all it’s worth.
What, then, could the Republicans do to force an end to the stalemate?
Put Secretary Simon in His Place
The most galling part of all this has been Secretary of State Steve Simon’s tyrannical behavior as presiding officer, a role that the state constitution expressly confines to ceremonial functions. Simon has ignored the motions of the unorganized House. He has asserted a unilateral right to adjourn the unorganized House. As we have seen in previous articles, there is no textual evidence that he has this power.
I am very far from a parliamentary expert (or even a parliamentary competent), but I keep reading Sec. Simon’s defenses of his actions, and the weakness of his defenses has done more than anything to convince me he’s abusing his authority. Even when the House lacks a quorum, the motion to adjourn, at the very least, remains a motion (not a decree). As we have seen, even the unorganized House has the right to make that motion. (The unorganized House also has a right to wait five more minutes to see whether the absent members might show up. Maybe the entire DFL just got stuck in traffic!) Simon is breaking the rules for obviously partisan political ends, then pleading that he’s just following the rules he made up, like Mike Pence if Mike Pence were a coward.
The Minnesota Supreme Court’s ruling last week did not validate any of Sec. Simon’s procedural chicanery. The House should therefore start by re-asserting its authority against Sec. Simon. Even if nothing else in this article makes sense, even if literally the only thing the House can do after convening is adjourn (as Simon maintains), the unorganized House should still wrest this power back from its tyrant presider. Even if this brings about no change in the overall circumstances, it will put an end to the humiliating ritual of Sec. Simon ignoring the House’s rights day after day.
Here is my suggestion: the next time Sec. Simon takes the roll and finds the absence of a quorum, he will (once again) unilaterally declare the House adjourned, because he does that every day. The House should raise a point of order, to the effect that he cannot unilaterally adjourn the House but that adjournment requires a motion.
If he accepts the point of order and says, “The chair will now entertain a motion to adjourn,” nobody should make one. Everyone should just stare at him for exactly five minutes. Then offer the motion to adjourn, second it, pass it, and let him gavel out.
If he ignores the point of order and walks off the rostrum, then Rep. Paul Anderson, as the oldest member present, should take the rostrum, just as he did on the first day of the session, per MN Rev. Stat. 3.05. He should suggest that the House wait a few minutes to see whether the absent members will show up, and he should entertain a motion to adjourn. The House should wait in silence for five minutes, then offer the motion to adjourn, second it, pass it, and Rep. Anderson can gavel out.
This does not, by itself, advance the Republicans’ agenda at all, so perhaps they won’t bother. But, as a certified rules stickler, I say it’s a good thing in and of itself to force Sec. Simon to play by the rules, or shove him aside under those same rules. I disagreed with the Minnesota Supreme Court’s decision last week, but without rancor. I condemn the decision of the DFL to quorum-bust, but I don’t deny it’s allowed under the rules. Only Sec. Simon’s behavior at the podium has managed to make me angry.
(If someone shows me authority which shows that Simon is right and I’m actually the idiot here, I’ll take this all back. It’s not impossible. I’ve already been wrong several times in this series.7 But if Simon were right, wouldn’t he have cited that authority by now? His January 10 letter expressly acknowledges the body’s authority to make adjournment motions, yet he has repeatedly taken the authority upon himself. He chalks up his refusal to entertain incidental motions to “custom,” but he is suuuuper vague, and, properly speaking, custom is only custom if it’s generally recognized. The GOP clearly doesn’t recognize this “custom.”)
Once the House has done this two or three times, establishing its rights, then it might be worth considering taking further steps to end the stalemate. There’s no need to rush, though. Sec. Simon and his DFL co-partisans already want to keep the House shut down until March!
Compelling the Attendance of Absent Members
The Minnesota Constitution says:
A majority of each house constitutes a quorum to transact business, but a smaller number may adjourn from day to day and compel the attendance of absent members in the manner and under the penalties it may provide.
My assumption throughout this series has been that, if the Minnesota Supreme Court ruled in favor of the Democrats, the Republicans would attempt to exercise their clear constitutional authority to “compel the attendance” of the absent members.
My main concern was that I didn’t think it would work. After all, historically, these “compel the attendance” clauses are pretty weak. They entail the House sergeant-at-arms wandering around looking for absent members… who, of course, have gone into hiding, and the sergeant-at-arms typically lacks the resources to find them. Often, absent members flee the state, and the sergeant-at-arms lacks jurisdiction to go get them. I can’t think of an occasion in my lifetime where a compel-the-attendance clause actually ended a quorum-bust, except that one time on House of Cards.8
However, once the Minnesota Supreme Court’s order on quorums came down and I started working on this update, I dug into the details of the “compel the attendance” clause of our constitution, and things became… murky. I’m not certain of much anymore, except that I was overconfident about this power in my first piece.
In fact, at one point during the drafting of this post, I became fully convinced that the power to compel absent members is not available to the current, unorganized House, and that said House really would just have to show up every day, take a quorum call, then move to adjourn. (I still thought they should wrest their procedural powers back from Steve Simon, but doubted they could actually do anything with their power.)
Now, after even more reading, I’m back to thinking that this power is available to the House, but it’s still messy and I could imagine a reasonable court ruling the other way. Follow me down the rabbit hole and make up your own mind.
Start with our old friend Mason’s Manual,9 which has this to say on the subject of compulsory attendance (emphasis mine):
Until a legislature is organized, it has no authority, unless granted by the constitution, to compel the attendance of absent members; but it can adjourn from day to day until a quorum can be secured and the body is organized. After organization a quorum has the unquestionable right to compel the attendance of other members, and less than a quorum is usually given that right by constitutional provision…
The “organization” of a legislature is that magical moment where a rabble of men bearing appropriate credentials transforms itself, by common consent, into a functional parliamentary body. Organizing is the first thing the legislature does, because it isn’t truly a legislature until it happens, so it can’t exercise legislative powers. (I will proceed on the assumption that the Minnesota House has not organized, although see this footnote for more details, plus some reasons to doubt it.)10
My first instinct was to think, “No problem! Our constitution does expressly grant the authority to compel attendance to the legislature acting without a quorum, so we don’t need to worry about being organized.” Then I hesitated. Our constitution doesn’t expressly say anything about the legislature’s authority before organization. It passes over “organization” in silence.
So I dove into Mason’s footnotes.
Mr. Cushing’s Views
Mason’s cites Cushing’s Legislative Assemblies, aka Lex Parliamentaria Americana. Since Cushing’s was in widespread use during the framing of the Minnesota Constitution, and was an attempt to describe contemporary parliamentary practice, it can a great deal of light on the original public meaning of our state’s constitution. In today’s English, the phrase “a smaller number may… compel the attendance of absent members in the manner… it may provide” might be ambiguous, but, in the professional legal English of 1857, it might have been a legal term of art with a well-defined meaning. Since our law is properly governed by original public meaning (not present public meaning), a clear public understanding of this provision that existed in 1857 would control our practice today.11
As it turns out, Cushing’s has a ton to say about the power to compel attendance before organization, comparing a number of different state constitutions and the federal constitution. I read several fascinating pages (starting at #254), but here is the key bit (emphasis mine):
The constitution of the United States provides, that a smaller number than a quorum “may be authorized to compel the attendance of absent members, in such manner, and under such penalties, as each house may provide”… The constitutions of Georgia, Florida, Michigan, Texas, Missouri, Iowa, Wisconsin, and California, contain clauses, similar in substance to those last mentioned. Constitutional provisions, of this kind, do not confer any present authority of themselves to compel the attendance of absent members; nor do they authorize the conferring of any such power by law; they merely authorize each house, when duly constituted, to compel the attendance of its members. Consequently they can have no operation until after the organization.
In other words, Mr. Cushing tells us, a provision like this allows a legislative house to pass rules regarding compulsory attendance. The rule must be from the house itself; neither house can conspire with the other to pass permanent laws about quorum-busting. Once the rules exist, of course, a minority of the house has the power to act on them.
The problem is, a house can’t pass rules until it exists. An unorganized house is powerless to pass rules, therefore (according to Mr. Cushing) powerless to compel attendance.
Minnesota’s constitution has a very similar quorum clause to the one described in this passage. It was proposed a year after Mr. Cushing wrote this. Therefore, this was the original public meaning of the words, and, therefore, Minnesota’s constitution is subject to the same limitations, and can pass no rules to compel the attendance of absent members until it is organized. Case closed, right?
Pffft! It’s never that easy.
Some Objections
I see three problems with applying Mr. Cushing’s analysis to the Minnesota Constitution.
FIRST, there is a grammatical ambiguity in the Minnesota constitution which is not present in the federal quorum clause. Namely, in Minnesota’s quorum clause, what is the antecedent of “it”, three words from the end?
A majority of each house constitutes a quorum to transact business, but a smaller number may adjourn from day to day and compel the attendance of absent members in the manner and under the penalties it may provide.
Does “it” refer to the “house”? If so, that implies that the house must be organized to “provide” such “manner” and “penalties,” because an unorganized house doesn’t technically exist yet and so can’t provide anything.
Does “it” refer to the “smaller number”? If so, that implies that the house needn’t be organized to exercise this power, since it’s expressly granting that power to an entity other than the house.
There’s nothing in the text (that I can see) to indicate which antecedent of “it” is correct.
The Florida Constitution at the time had exactly the same ambiguity (Art. IV, Sec. 8). Cushing’s assumes that this was irrelevant, and that Florida’s quorum clause bore the same meaning as the federal quorum clause. Since Cushing’s is a survey of general legislative practice at the time, that assumption, in itself, is probative.
However, Cushing’s is wrong.
In last week’s Supreme Court decision affirming the DFL’s definition of a quorum, Sec. Simon cited an 1868 case from Florida’s Supreme Court, In re Exec. Communication of 9 November, 12 Fla. 653. Florida’s precedent was (evidently) persuasive to the Minnesota' Supreme Court because Florida’s quorum clause was, at the time, almost word-for-word identical to Minnesota’s.
In that Florida case, the lead opinion of the court expressly affirmed that a quorum was necessary “for the purpose of general legislative business, as contradistinguished from its power to… compel the attendance of absent members, and other powers necessary to its organization.” (emphasis added) This view was confirmed by several other opinions, including that of the chief justice, who made express reference to the power of an unorganized house to exercise the power of compulsion against absent members.
Even though the Florida Supreme Court cited Cushing’s on the question of the definition of a quorum (in that very same opinion!), they clearly did not share Mr. Cushing’s opinion that the state legislature was powerless against absent members until the legislature was organized. They clearly believed that their state constitution—using slightly ambiguous language identical to Minnesota’s—assigned that power to even an unorganized minority of each house.
SECOND, Cushing’s tells us that, under the language Minnesota used in its quorum clause, any compulsion against absent members must be provided for by house rules, not by statute. Since this can only happen once the house is organized, states with this language (according to Mr. Cushing) are powerless to do anything about absent members when the unorganized legislature convenes.
We know that Minnesota’s framers did not agree, because, right after they ratified the Constitution, they promptly passed a state law compelling the attendance of absent legislators. In the Statutes of 1858, Chapter 4, Section 32 (XII), the very same year the Minnesota Constitution was ratified, we find this provision:
That whenever at the commencement, or during the regular, adjourned[,] or called session of the legislature, upon a call of either house, it shall be found that no quorum of members is present, or if any member or members shall be found absent upon any such call, the members present shall be authorized to direct the sergeant-at-arms, or if there be no sergeant-at-arms of such house, then any other person duly authorized by the presiding officer of either house, to compel the attendance of any or all absentees: provided, that if the house refuse to excuse such absentee) he shall not be entitled to any per diem during such absence.
This statute expressly authorizes the unorganized members of the House to direct somebody to go around arresting absent members and dragging them to the House floor. (Better yet, it deprives absentees of their legislative salaries, which is arguably more effective than trying to arrest them. Did you know the DFL quorum-busters are still collecting their salaries?)
This law survived for quite some time. It’s in the 1866 statutes, chapter 3, Title II, Section 13. It’s in the 1873 supplemental at Title II, Section 11. It’s still there in the 1894 Statutes, Section 229. We appear to have deleted it in the 1905 rewrite of Minnesota law. I can’t find any successor law that serves a similar purpose, although I may have missed it.
Cushing’s claims that the language of our constitution forbids this law. Apparently, Minnesota itself disagreed, and there can be no doubt that a statute passed in the immediate aftermath of the state constitution (and which stood for nearly fifty years) is a better interpreter of our constitution than a legislative manual we don’t even rely on as an authority. Cushing’s was wrong about what this language meant in Florida, and it was wrong about what it meant in Minnesota.
THIRD, a more general problem with this bit of Cushing’s: Mr. Cushing himself, and Mason’s Manual after him, both strongly affirm (in Mason’s words) that, “The absence of the power of a legislative body to compel the attendance of all members at all times would destroy its ability to function as a legislative body.” (190.4). Mr. Cushing’s interpretation deprives nearly all legislatures of that power before they have organized. As we are seeing today, he was right! This does destroy the Minnesota House’s ability to function as a legislative body!
As we have seen, Mason’s Manual expressly allows that a state may allow the compulsion of absent members by constitutional authority, and cites Cushing to that effect. But Cushing itself makes no such allowance. If you read all of Cushing on the question of compelling attendance, Mr. Cushing appears to believe that no state constitutional provision allows an unorganized house to compel the attendance of absent members.
Take Indiana. Indiana’s constitution (Art. IV, Sec. 11) expressly allows a “smaller number” to “compel attendance,” with no reference to any need to pass rules or laws authorizing it. Even Minnesota DFL Rules Guy Dan Thomas-Commins12 agrees this sentence does allow their unorganized legislature to compel attendance. He holds it up as a contrast to our constitution to show why Indiana can compel the attendance of members and Minnesota can’t. But here’s what Cushing’s has to say about the Indiana Constitution:
…in Indiana… it is presumed… provision may be made either by law, or by each house acting for itself, to enforce the attendance of absent members.
Even in Indiana, Cushing’s “presumes” (presumes!) that the plain text of the constitution may not be effected by the people it empowers to effect it (an unorganized minority), but only “by law” or by rules made by “each [organized] house.” If we took Mr. Cushing at his word here, it would render null and void Mason’s statement that constitutions can grant the authority to compel the presence of absent members… as well as several actual state constitutional provisions, like Indiana’s.
We should therefore reject Cushing’s narrow view of the power of unorganized legislatures to compel attendance, and instead accept Mason’s broader view: a state that provides, in its constitution, for a “smaller number” to compel the attendance of absent members may exercise that power innately, without authorization by house rule or state statute. Our quorum clause is ambiguous about whether it assigns this power to the “smaller number” or to “the house” generally, but an identical passage in Florida’s constitution was construed to give that power to the “smaller number,” and any other interpretation based on a cramped reading of Mason’s Manual would contradict Mason’s broader democratic claim that a legislature must have the power to compel attendance at all times in order to function.
Self-Rebuttal
I can imagine a counterargument.13
It is true (the counterargument goes) that Cushing’s is wrong to say that the legislature can only pass rules to enforce attendance, not statutes. Clearly, Minnesota practice establishes that the state can also pass statutes to enforce attendance. However, the Minnesota Constitution still does not empower the “smaller number” to pass rules or statutes about attendance of their own accord.
Clearly, the Minnesota Constitution’s language was intended to parallel that of the federal Constitution, as well as that of many other states. When they wrote “it” at the end instead of using the federal Constitution’s phrasing (“each house”), they surely weren’t trying to reassign the power to the “smaller number”. Such a dramatic move would surely have made waves and left some historical record. No, an ambiguous text that is so similar to so many other unambiguous texts in so many other constitutions should be construed to mean the same thing as those unambiguous texts, in the absence of clear evidence to the contrary. You’re reading too much into that Florida Supreme Court decision (the counterargument continues), which only addresses the power of an unorganized legislature to compel members in non-precedential obiter dicta, and, even then, only by implication and only in passing.
The fact that Minnesota immediately passed a state law to deal with absent members is evidence for this position. Clearly, the framers wrote a statute to deal with this because they believed that the state legislatures did not have any innate power to compel attendance. If it had, the law would have been unnecessary! When the state legislature repealed that law in 1905, they did not thereby transfer this constitutional power from each house of the legislature back to the unorganized rabble waiting for a quorum; they can’t transfer a power that the state constitution has conferred on them.
Instead, their repeal was a choice to stop using the constitutional power to compel attendance. Legislatures do not have to use all their powers. The U.S. Congress has never implemented its power (Article I, Section 9) to impose a direct tax in proportion to state population.
Because the House has declined to exercise the power to define penalties for quorum-busting in state law, there is currently no penalty for quorum-busting. Moreover, since there is currently no Minnesota House of Representatives, there is nothing the unorganized Republican rabble can do about it, even though that leaves us in the very stupid position of allowing a minority to shut down the business of the legislature (while still collecting their paychecks).14
Much of this counterargument is, I think, sufficiently refuted by the arguments I have already made, so I will not bore you by remaking them. However, I’ll leave this counterargument with a question:
Mason’s spoke of an unorganized legislature having “no authority,” to compel attendance, “unless granted by the constitution.” Clearly, Mason’s Manual believes that some constitution somewhere grants or has granted this authority, or it wouldn’t have felt the need to say so. Which one?
Under my interpretation, laid out above, several state constitutions grant this authority (including Minnesota’s), while several others (like Pennsylvania’s contemporary constitution) do not. (Pennsylvania’s constitution expressly states that provision to compel attendance may be made only “by law.”) Mason’s statement makes sense in my interpretation, since some grant this authority and others do not.
Under the contrary interpretation, laid out in this rebuttal, it seems that no state constitutions grant this authority. Minnesota’s doesn’t. Indiana’s doesn’t. Florida’s doesn’t. Which one does? If the answer is “none,” then the exception in Mason’s Manual makes no sense—and the counterargument lives and dies on Mason’s Manual being the controlling authority here, rather than a plain text reading or past practice or that Florida Supreme Court decision the DFL relied on in last week’s lawsuit.
On Monday, after the Minnesota Supreme Court’s ruling, Rep. Harry Niska (R-31A) put a motion on Sec. Simon’s desk:
Sec. Simon, continuing with his fiction of pretending there’s nobody in the room with him, ignored the motion. For reasons already discussed, Simon should, at the very least, have ruled this out-of-order, instead of ignoring it. The unorganized legislators, under the universal laws of parliamentary practice, might have appealed and overturned this ruling. However, Simon, or one of the affected legislators, could then have sued again and gone to the Minnesota Supreme Court again. Instead, Simon pretended it wasn’t there. Boo.
Given what I now understand about the powers of the unorganized legislature under our state constitution, I would have ruled this motion in order. It appears to me to be an appropriate exercise of power under the state constitution. The house could have ordered the absconders deprived of salary—and still could.15
So, I guess what I’m saying is… who’s up for Round Two?
Other Options
The GOP has a few other tools in its arsenal. I was originally planning to write about each at some length (before explaining why I thought they wouldn’t work). However, this whole power-to-compel-attendance thing ended up being much, much deeper than I expected (and much more likely to succeed than I thought when I started writing this). The article is already too long, my bedtime has already passed, and I work in the morning.
Nevertheless, since this is probably the last article I will write about the Minnesota Legitimacy Crisis, let’s quickly glance at a couple of the other possibilities:
Invalidating the Quorum-Busters’ Oaths
Here’s something I’ve seen a lot since last week’s court ruling—on Twitter, in comment threads, and even in text threads on my phone.
State law provides that legislators are to be sworn in at the opening of the session. The Democrats knew they were going to quorum-bust the opening of the session, so they got themselves sworn in by a retired judge several days earlier at a secret ceremony. This was, like many things the DFL has done to prevent the session from starting, gross and anti-democratic.
However, many Republicans have argued that these oaths were entirely invalid. Those who swore the oath at a place and time other than that prescribed by statute (the argument goes) are not legislators, but still mere legislators-elect.
My first instinct, without looking into the case law, is that this view is mistaken. In the comments a few days ago, I drew an extended analogy to Catholic sacraments. I finally concluded that the DFL oaths were (probably) illicit but not invalid, and that the DFL members are all therefore (probably) still valid members. In fact, heck, it’s already typed out, so why don’t I just copy it here?
The Catholic Church has sacraments, and those sacraments have to be performed a certain way.
Critics say that this reduces the love of Christ to "saying some magic words." The phrase "hocus pocus" is a Protestant parody of the Catholic words of consecration: "hoc est enim corpus meum." Defenders respond that they stick to certain formulae because those formulae are what Christ ordained. That's neither here nor there. The point is: for Catholic sacraments, you have to perform the ritual correctly, according to the book.
However, there are several ways you can do a sacrament incorrectly, and these differences have important consequences in Catholic thought.
Invalidly: If you fundamentally screw up a sacrament and lose something essential to it, it doesn't count. It is invalid; that is, null and void. For example, there was an unpleasant occasion a few years ago where a priest in St. Paul, watching an old family movie, found out that he had not been baptized in the name of the Trinity, but in the name of something else a liberal Arizona priest had made up. His baptism was invalid. Only the baptized can be ordained, so his ordination was invalid. Only the ordained can hear confessions or consecrate the Eucharist, so basically everything this guy had done as a priest was also invalid, and tons of people who thought they'd received valid absolutions had not. Moreover, hundreds of other people had been baptized by the same priest and had to be contacted and re-baptized. It was an unholy mess. (Catholics presume that Christ will provide grace wherever the Church falls short in fixing its mistakes, but also presume that it is mankind's responsibility to do it right insofar as humanly possible, so no expense was spared in trying to fix all of this.) Invalidity arises, however, only from fundamental defects in the form or matter of the sacrament itself.
Illicitly: The Church also has lots of legislation about who can perform which sacraments when and for whom. For example, people who are in schism are not supposed to perform sacraments. For another example, priests are not supposed to hear confessions outside their own dioceses without permission from the local bishop. These are merely human statutes, though, put in place by the Pope for the well-being of the flock. If you violate this and perform a sacrament illicitly, you may be punished under ecclesial law. A priest acting illicitly might be restricted from performing sacraments at all, expelled from a diocese, or (in extreme cases) defrocked, excommunicated, (in theory but not in the modern world) imprisoned or executed. But as long as he is a priest with valid orders in the apostolic succession who performed the act correctly, the sacrament itself is valid! He can confect the Eucharist; he can forgive sins.
Irregularly: A subset of illicit sacraments. Lots of the Church's legislation regulating the sacraments is not actually enforced or even really enforceable, especially legislation governing details of the liturgy surrounding the sacrament. If you make light edits to the liturgy book, the bishop might yell at you, but there's not much he can actually *do* to you, at least not through the Church criminal justice system. It's shameful and often sinful, but not directly punishable.
I spell all this out to make an analogy.
The oath of office is a kind of secular sacrament. A certain person says certain magic words, and he or she is thenceforth clothed in the legal power of a public office. Like a sacrament, I think it can be performed invalidly, illicitly, or irregularly.
The DFL’s underhanded trick of absconding to a secret swearing-in ceremony is, of course, to be condemned. It was bad for our democracy performed in service of a plan to actively obstruct our democracy through quorum-busting. However, it strikes me that their maneuver was *illicit* but not *invalid*. The essential elements of the oath were all there, administered and witnessed by an appropriately "ordained" minister of the law. Moreover, since the statute fails to specify penalties for people taking the oath illicitly, I think the worst we can say is that they acted irregularly. Shamefully, even. But I don't think the GOP is wrong to accept that they are sworn members of the legislature (and they seem to agree that this is the case).
(Curtis Johnson, on the other hand, isn't, since he never took the oath, right? I suppose that could matter if the existence of the 40B vacancy ends up being decisive in the case.)
I should take the time and dig out the case law on this (surely there is plenty!) rather than making this analogy to the Catholic legal system, but can't today so this is my response (for today).
However, I haven’t looked into it any further, because, interesting academic question aside, I fail to see what effect this would have on anything.
If none of the DFL members are actually members of the House, that means that GOP currently enjoys a 67-0 advantage in the House… but, under last week’s Supreme Court ruling, that’s still not enough for a quorum, so the House still couldn’t organize, 67-0 or 67-66, it doesn’t seem to make a lick of difference unless you can get 68 of them in the chamber for a quorum call. Once the House does organize, the Democrats all get the chance to take their oaths the proper way anyway, so they will eventually take their seats and invalidating their illict oaths won’t change that.
Perhaps being deprived of their office (because they haven’t taken a valid oath) would deprive them of pay, which might get them back to the legislature? I dunno. This question still interests me, but, until someone can explain to me what the point would be, I’m going to leave it on the back burner.
Tie the 40B Special Election to the Quorum
Here’s an interesting idea I haven’t seen anywhere else. I don’t think it quite works, but it’s interesting.
As you all know from this series, District 40B’s winner, Curtis Johnson, turned out to be unqualified for office and was turfed out in an election contest, setting this whole crisis in motion. Gov. Walz initially tried to schedule a special election to fill his seat ASAP (on January 28), but, since this was illegal, the Minnesota Supreme Court smacked him down. The statute (204D.19.4) requires:
[T]he governor shall issue 22 days after the first day of the legislative session a writ calling for a special election…
Everyone has assumed that the “first day of the legislative session” was January 14, 2025 since another statute (3.011) states:
3.011 SESSIONS.
The legislature shall meet at the seat of government on the first Tuesday after the second Monday in January of each odd-numbered year. It shall also meet when called by the governor to meet in special session.
This appears to be the statutory definition of a legislative session. Over in the Minnesota Senate, this went exactly to plan: the senate met, organized, and commenced its session on the first Tuesday after the second Monday, on January 14.
But that didn’t happen in the House, did it? If the House hasn’t organized, has the House legislative session actually started yet?
If the GOP could convince the Minnesota Supreme Court that the answer is “no,” that would put the DFL in an impossible position: the DFL is refusing to come back until the District 40B special election has been held (presumably bringing them back to a tie standing), but this would make it impossible for the District 40B special election to be held until the DFL came back to work. They’d have no choice, as I see it, but to report to work.
There are several reasons I’m very skeptical this is actually correct as a matter of law, though.
First, in common usage, I typically hear “legislative session” referring to the session of the legislative branch overall, not one house of the legislature. (Of course, I’ve never lived through a situation where the house and senate weren’t in session on the same start and end dates, so maybe that isn’t surprising.)
Second, the special election statute refers only to “the legislative session,” not to the legislative session of any particular house. (Perhaps it can be taken to be implied, though.)
Third, the burden of proof very likely lies on the person making this off-the-wall argument, and I don’t know of any independent legal authority supporting this interpretation. (Maybe it’s out there, though. I’ve said repeatedly I’m very weak on state law.)
Fourth, in its ruling on the special election, the Minnesota Supreme Court wrote the literal words, “the start of the legislative session, which began on January 14, 2025.” (But this wasn’t a holding, just a tossed-off phrase.)
Cunklusion
I dunno, I’m supposed to end articles like this with some sort of idea that ties it all together, but I kind of already did that at the end of the section on compelling absent members, and the rest of the article was sort of an epilogue.
So, instead, here’s an irrelevant compilation of Cunk on Politics, which was published a mere 35 years after the release of unrelated Belgian techno anthem, “Pump Up The Jam”:
Programming Note: This is probably the last I will write about this case. The constitutional crisis is over, so all that’s left from here is maneuvering. I’ve laid out my best layman’s guesses and arguments about how that maneuvering could go, and now all that’s left to do is see how it all plays out!
When I return in a few weeks (after a nice break), we’re probably due for a Worthy Reads, and I think it’s high time for another entry in my Letters to a Growing Catholic series, because my daughters keep getting inexorably older and I need to finish the book before they hit a certain age!
UPDATED (in a new article) Less Than 12 Hours Later:
At the time, the Lieutenant Governor was permanent president of the senate by constitutional provision. That provision was repealed by a state constitutional amendment that the voters approved the very next year, in 1972. Coincidence? I don’t know the history, but I doubt it. Today, the Lt. Gov. is ceremonial president of the senate for just a few minutes, at the start of the session, before the senate elects its permanent officers, by statute (not by constitutional provision), specifically MN Rev. Stat. 3.06.
Another tied-House situation in 1978 got an interesting and worthwhile writeup from John Phelan at American Experiment a few weeks ago, called “The Making of a Majority.”
I have done this to courts of both parties. Last summer, I accused John Roberts and four of the five conservative justices of playing political games in the U.S. Supreme Court’s immunity ruling.
My own longstanding view is that, since errors and fraud in an election often account for 0.03% - 0.10% of all votes cast, you can’t say with much confidence who “really” won an election when the margin is under about 0.08%. Tabke’s certified margin of victory was 0.06% of all votes cast. Under those circumstances, all you can do is play these things out by the rules and see what happens. Ordering a new election is reasonable, but accepting the razor-thin results of the original is also reasonable. Most will therefore do whatever benefits their party, and no shade to them for doing so.
What we can say for sure is that, when the DFL insists that “Minnesota voters elected a tied House in November,” there should be an asterisk there: Minnesota voters very possibly elected a tied House in November, but also quite plausibly they elected a one-seat Republican majority. The truth of a 0.06% election can never be certainly known.
Election error is miniscule, just as the Democrats are always saying, but miniscule errors in tight races can plunge whole governments into chaos (as here). This is a good reason to implement voter photo ID, which Minnesota decisively rejected in a 2012 referendum. The benefits of photo ID are tiny, but every tiny victory in the war on error helps protect the legitimacy of the government after a close race.
Before the challenge to Tabke’s election could be heard, the two parties would have to agree on a speaker and possibly agree to rules that treat the two parties as tied, but, as long as the rules don’t say anything like “these rules can only be overturned by a two-thirds vote,” the GOP would presumably be free to dump the rules and elect their own speaker as soon as Tabke was ejected. This would lead the Democrats to deny quorum.
However, I’m not very clear on how this would play out procedurally, so it is possible that I am getting it wrong. Perhaps the stalemate will end after the District 40B election, regardless of what happens to Tabke. That, at least, would explain why nobody is talking about stalemate lasting into May.
UPDATE 2:54 PM: John Phelan notes that, per the events in 1978 (discussed in Footnote #2), it may be the case that Tabke cannot vote in his case, but can vote on whether his case is brought up for vote in the first place. Perverse! That would, however, protect his seat once the District 40B election is certified.
Off the top of my head: first, the authority Sec. Simon cited regarding quorum did exist in the 2020 Edition of Mason’s Manual, whereas I had speculated that it did not. Second, I initially thought Simon’s claims to authority were stronger because I overlooked the state constitution’s separation-of-powers clause. Third, as I am about to discuss, the power of the unorganized legislature to “compel the attendance of absent members” is much more questionable than I gave it credit for in Part I of this series. (I described it there as something “any literate person” would admit, which is pretty strong language for something that turned out to be wrong.)
To be fair, that House of Cards episode was based on a real incident that occurred in February 1988, but, since I was not conceived until August 1988, it didn’t occur in my lifetime.
I am still using the 2010 version because I keep thinking, “Nah, I don’t need to drive down to the law library to pick up a 2020 edition, because surely the Mason’s Manual part of this psychodrama will be over by the time I get it and then I will have just wasted my time.”
Typically, the organization process runs something like this:
Each member of the rabble claiming membership in the body presents his credentials to a convening officer (designated beforehand by whatever entity calls the body into being) and swears the oath of office.
The body elects a presiding officer under the most basic universal parliamentary rules.
The body passes official rules of some sort (often temporary rules to govern credentials disputes only).
Some in the rabble may have disputed, invalid, or even forged credentials, so the body now resolves credentials challenges.
If the body passed only temporary rules, it now passes official rules.
The body establishes committees.
If a legislative body, the body now sends communiques to other branches notifying them of its successful birth.
At some point during that process (the exact point varies), the body is deemed to be “organized” and can begin to exercise its full powers. The view of Cushing’s Legislative Assemblies, #276 (p106) is that:
The three essential parts of an organization are the qualification of the members, and the choice of the presiding and recording office.
However, the view of the Minnesota Revised Statutes is, arguably, different:
3.05 ORGANIZATION.
At noon of the day appointed for convening the legislature, the members shall meet in their respective chambers. The lieutenant governor shall call the senate to order and the secretary of state, the house of representatives. In the absence of either officer, the oldest member present shall act in the officer's place. The person so acting shall appoint, from the members present, a clerk pro tem, who shall call the legislative districts in the order of their numbers. As each is called, the persons claiming to be members from each shall present their certificates to be filed. All whose certificates are so presented shall then stand and be sworn.
The organization statute (3.05) requires only that the rabble be convened and sworn. Once the rabble is sworn, the statute seems to imply, it is organized.
The Minnesota statutes then command (3.06) that the legislature proceed immediately to the election of officers, but does not designate this as part of “organization” in the statute.
Now, I don’t think we should read very much into this, since it’s just a caption, and I suspect that Minnesota custom and parliamentary precedent contradicts it. Statute is generally weightier than custom or precedent, but a clear custom or precedent may trump a vague statute, or a strained interpretation of one.
On the other hand, a clever and determined lawyer for the Republicans might conceivably argue that, by Minnesota statute, the House is legally “organized” the moment it has taken its oaths, even before it elects a presiding officer. If this were the case, then, by Mason’s Manual, the House Republicans would enjoy “the unquestionable right to compel the attendance of other members.”
If you are a clever and determined lawyer for the Republicans, why not make that case? The House isn’t doing anything else for the next couple months, and the Minnesota Supreme Court has already decided to make itself the final arbiter of House rules, so you can run it by them. If nothing else, you’d make them eat their own dog food.
SIDEBAR: Last week, I argued that Cushing’s rule for setting the number of a quorum should be set aside in Minnesota law. This was, firstly, because Cushing’s rule didn’t apply to Minnesota’s constitution by its own terms; secondly, because Cushing’s rule was obsoleted by the U.S. House during the Civil War; and, thirdly, because Mason’s Manual (not Cushing’s) is the controlling background authority in the Minnesota state legislature.
None of these objections apply to Cushing’s rule on the separate question of compelling attendance without quorum. This rule does apply to Minnesota; was not overturned by the Civil War; and I’m exploring it only as a source for discerning original public meaning, not as directly binding authority, so Mason’s higher precedence is irrelevant.
If this stuff interests you, you should follow him on Twitter, or at least add him to your “Minnesota politics” Twitter list.
It is not difficult to imagine, since, four hours ago, I believed this counterargument was correct. This was before I fully unpacked Cushing’s.
I would like to know, but don’t, whether there are any records of 1905 legislature which cast light on this. If one legislator said something like, “We need to repeal this because the Minnesota Constitution forbids us from giving unorganized legislatures statutory power to compel attendance” and the rest of the room shouted, “Hear hear! Delete the unconstitutional statute!”… well, that wouldn’t necessarily be decisive, since the legislature of 1905 can’t change the original public meaning of a constitution from 1857, but it would certainly be probative!
Something I don’t know: who would receive that order? Are members of the Minnesota House paid by the legislative branch or the executive branch? The DFL-controlled executive branch certainly wouldn’t honor this order, which could create awkward standing issues in any subsequent lawsuit.
I appreciate the work you've done to share this story, even if I don't like the way the story is turning out. Oh well, at least these guys no longer represent me...