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Why Michelle Fischbach’s prospects for staying in the Senate are bleak

Sen. Michelle Fischbach

The selection of Tina Smith by Gov. Mark Dayton to replace Al Franken as U.S. senator is degenerating into a political fight that ultimately may require the Minnesota Supreme Court to decide whether state Sen. Michelle Fischbach gets to keep her seat in the Senate.

Here is the issue. Franken’s resignation from the U.S. Senate triggers Minnesota Statute §204D.28, allowing Dayton to replace Franken. Dayton picked his lieutenant governor,  thereby creating a vacancy in that office.

According to Article V, Section 5, of the Minnesota Constitution, “The last elected presiding officer of the Senate shall become lieutenant governor in case a vacancy occurs in that office.” That would make it Fischbach, a Republican, who would become lieutenant governor, creating a vacancy in her position and necessitating a special election for her Senate seat under Article IV, Section 4, of the state Constitution.

Except, does Fischbach have to vacate her Senate seat? Democrats argue yes, pointing to two clauses in the Minnesota Constitution. The first is Article III, Section 1, stating that:

The powers of government shall be divided into three distinct departments: legislative, executive and judicial. No person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others except in the instances expressly provided in this constitution.

The second is Article IV, Section 5, declaring that:

No senator or representative shall hold any other office under the authority of the United States or the state of Minnesota, except that of postmaster or of notary public. If elected or appointed to another office, a legislator may resign from the legislature by tendering his resignation to the governor.

Open-and-shut? Or not?

Taking a plain language reading of the Minnesota Constitution, DFLers contend that Fischbach must assume the position of lieutenant governor and vacate her position as state senator. It seems open-and-shut, except Republicans say it is not. They contend first that the reason Dayton, a DFLer, picked Smith was to force a Republican vacancy in the Senate, hoping in a special election to flip the 34-33 GOP majority into DFL control.

Republicans are conjuring up images of DFL political chicanery in hopes of repeating the 1978 Minnesota Massacre sweep of the two U.S. Senate races, the governorship, and legislative races again in 2018. But Republicans also claim law is on their side, citing the Minnesota Supreme Court’s State ex rel. Marr v. Stearns, 72 Minn. 200 (1898). In that case the legal issue was a challenge to a decision by an Aitkin County auditor to tax three railroad-owned properties, pursuant to a state law. In challenging their taxation, one argument was that the state Senate did not adopt the legislation by the required majority vote as required by the state Constitution. Specifically, Honorable Frank A. Day, who voted for the bill, and whose vote was necessary to pass it, was not then a senator, and his vote thereon was void.

According to the court, Day was elected as a senator from the sixth senatorial district of this state for the term of four years, commencing in January 1895, and on Jan. 25, 1895, became president pro tempore of the Senate. Six days thereafter, Gov. Nelson resigned, and Lt. Gov. Clough became governor; and thereafter, and until the close of the 29th  session of the Senate, Day performed the duties of, and acted as, lieutenant governor. He also, until the close of the session, continued to act and vote as a senator, with the tacit approval, at least, of the Senate.

In rejecting the claim that he had left the Senate and became lieutenant governor the court rejected arguments that either Article III, Section 1, or Article IV, Section 5, forced Day out of the Senate. The court argued that in interpreting all of the state constitutional provisions as a whole, there was no explicit or clear language that said the senator must resign. Additionally, the court also noted how Article VIII, which discusses impeachment, excludes the lieutenant governor from being impeached as an officer, suggesting that this person remains a senator. Finally, the court noted that the impeachment clause specifically excluded the lieutenant governor from serving or voting when the governor is impeached. Providing for this specific exclusion is proof for the State ex rel. Marr v. Stearns that the Constitution, taken as a whole, means that the presiding officer of the Senate vacates that seat when becoming lieutenant governor.

Interesting, but not convincing

schultz portrait
David Schultz

State ex rel. Marr v. Stearns is an interesting precedent, but is not convincing. First, the court’s real holding in the case was about taxation and not on the matter of whether the president pro tempore of the Senate loses his Senate seat when becoming lieutenant governor. The latter issue was collateral to the main issue. Second, in the 19th century Minnesota and other states’ court applied the “enrolled bill” doctrine, a presumption that the judiciary would not second-guess how the Legislature did its business or count its votes. That doctrine is mostly dead now. Third, the decision in State ex rel. Marr v. Stearns was overturned by the U.S. Supreme Court in Stearns v. State of Minnesota, 179 U.S. 223 (1900). While the U.S. Supreme Court cannot overturn the Minnesota Supreme Court’s own interpretation of our Constitution, the former’s decision clearly erodes the authority of State ex rel. Marr v. Stearns as precedent.

But the strongest reason State ex rel. Marr v. Stearns is not good law is that the Minnesota Constitution has been significantly amended since that decision.

For example, back in the original Constitution (Article V, Section 6), the lieutenant governor was named ex-officio president of the Senate. This is no longer the case as a result of constitutional amendment. Back in State ex rel. Marr v. Stearns one could argue that the specific language of the Constitution blended the lieutenant governor into a position that stood as an exception to Article III, Section 1 or Article IV, Section 5. That is no longer the rule or the case today. Yes, the current Constitution fails to subject the lieutenant governor to impeachment, but that is an oversight in the amending process.

Thus, the current constitutional basis for the court’s decision in State ex rel. Marr v. Stearns is questionable on many fronts. If the GOP were to bring its case to the Minnesota Supreme Court there are many reasons to doubt the validity of this old decision.

Finally, given that a majority of the Minnesota Supreme Court now consists of Dayton appointees, and given how they ruled in the line-item veto case, the prospects of the Republicans winning and allowing Fischbach to stay in the Senate are bleak.

David Schultz is a Hamline University professor of political science. His latest book is “Presidential Swing States: Why Only Ten Matter.”  He blogs at Schultz’s Take.   


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Comments (13)

  1. Submitted by Aaron Albertson on 12/19/2017 - 08:48 am.

    The constitution says she can’t do 2 positions

    Seems like this should take the court 10 minutes. And the MNGOP should get better lawyers

  2. Submitted by Ray J Wallin on 12/19/2017 - 09:05 am.


    This whole issue may be sidestepped if Governor Dayton is able to make a deal with Republicans to temporarily elect a Democrat as Senate Leader for the sole purpose of that person being moved up to Lt Gov.

    • Submitted by RB Holbrook on 12/19/2017 - 10:11 am.

      Do You See That Happening?

      Realistically, do you think the Republicans in the Senate would make that kind of agreement to spare us constitutional awkwardness with Governor Dayton in the middle of it?

      Bear in mind that any constitutional “crisis” is largely a Republican project. They are creating this mess by their insistence that Senator Fischbach be allowed to stay in the Senate.

    • Submitted by Ray J Wallin on 12/19/2017 - 10:44 am.

      the old simplest solution …

      I would not call it a crisis. We are simply in the middle of exploring some gray areas of the state constitution.

      The average MN citizen would hardly notice if Senator Fischbach held both positions. I couldn’t list one thing that Smith has done, nor any previous Lt Gov., for that matter.

      Stepping back and taking a wider view:

      1) One would think that the governor would rather deal with a Democrat for a Lt Gov., as Smith has been vital to his success.

      2) There is a chance, however slight, that Fischbach could retain both positions.

      It may be simpler for Governor Dayton to move a confidant into the Lt. Gov. position to produce a win-win situation.

      • Submitted by RB Holbrook on 12/19/2017 - 11:04 am.

        Simpler, Yes

        It certainly would be simpler in the long run for Governor Dayton to name someone he knows and can work with as Lieutenant Governor. Constitutionally, that would be impossible, aside from the extremely unlikely scenario that has the Republicans finding their inner Do-Bees and cooperating.

      • Submitted by Ray J Wallin on 12/19/2017 - 12:02 pm.

        Not impossible. Maybe even probable

        It would not be impossible for the Governor to have the Republicans elect a Democratic state senator of his choice to be president of the senate and have that person move to the Lt Gov position.

        • Submitted by Jim Bernstein on 12/19/2017 - 09:57 pm.

          Why Would A DFL Senator Do This?

          The problem with that scenario is that one must then find a DFL state senator who wishes to give up the seat for a one-year term as Lt. Gov. If Sen. Fischbach must resign her seat to comply with the Minnesota constitution, then a DFL senator would be compelled to do the same. Since senators were all elected to four-year terms in 2016, I find it hard to imagine a DFL senator who would take the position unless he/she was planning on leaving before the end of the term anyway. Every state senator has more impact on policy than the Lt. Gov.

  3. Submitted by Paul Udstrand on 12/19/2017 - 09:27 am.

    It’s funny

    The self declared Constitution people are the only ones in the room who don’t seem to be able to comprehend the Constitution. They look at Second Amendment that says absolutely nothing about guns, or self defense, or firearms, and decide that it’s ALL about guns and personal self defense. They look at a US Constitution that nowhere in any way shape or form mentions the Bible or Jesus Christ, and decide the whole thing was inspired by the Christian Bible.

    On a local level they think they can selectively deploy the Constitution as they see fit rather than differ to it as a binding legal document. Republicans don’t understand the difference between a debate game and a court room.

    One basic principle Mr. Schultz doesn’t mention in Jurisprudence is that plain language in a Constitution always trumps any other argument. Granted not all courts follow that principle, SCOTUS has ignored it a few times in the last decade or so. But the MN supreme court JUST issued a victory for Dayton based on plain language doctrine thus demonstrating a clear deference to plain/clear language. No matter how “good” their lawyers are, Republicans who think they’ll go before this court and successfully argue that past rulings trump plain language are wasting everyone’s time.

    • Submitted by Greg Kapphahn on 12/20/2017 - 07:25 am.

      Our Republican Friends Use the Constitution

      the same way they use the Bible,…

      they find a fragment of it that they can twist to support what they WANT to believe,…

      then claim that everyone has to fall in line because it’s in their “inerrant” Bible,…

      or was the “original” intent of the founders of our state or nation,…

      as if they can ever know the mind of a non-human being so vast as God,…

      or the “founders” were of one mind on anything.

      For them, when your arguments are weak and/or illogical, or lack any real-world evidence to support them,…

      or you’re too lazy to do the work required to even develop those arguments or evaluate them objectively,…

      just appeal to antiquity,…

      using the moronic perspective that, the older a source is,…

      the TRUER it absolutely must be.

  4. Submitted by Ray Schoch on 12/19/2017 - 09:28 am.

    My 2¢

    I think Ian Anderson is on point, though this could all get much more entertaining, though not useful or productive, if U.S. Senate Democrats decide their condemnation of Al Franken was made in too much haste, and instead of demanding that he resign, switch positions and insist (or try to) that he stay in the Senate. And then Franken decides to stay instead of following through on his announced resignation. That scenario seems unlikely to me, but I’m no more an expert on inside politics than any other ordinary citizen, so I suppose it could happen.

    It seems likely to me that Ms. Fischbach will lose her Senate seat, unless she can somehow legally and constitutionally refuse Governor Dayton’s appointment of her to succeed Tina Smith. My guess is that she can’t do that, though that might be her strong preference. Whether the Minnesota DFL can, or will, take advantage of her absence seems to me an open question, though in today’s highly partisan atmosphere it wouldn’t be a surprise if it happened.

    The GOP stance seems likely to fail.

  5. Submitted by Curtis Senker on 12/19/2017 - 09:29 am.

    It is Smith’s prospects for a Senate seat that are bleak.

    Readers might remember I called it a week before the Alabama election.

  6. Submitted by Frank Phelan on 12/19/2017 - 10:07 am.

    Palace Intrigue

    I highly doubt that there is even a fair chance of the DFL winning a potential special election should Fischbach need to leave her seat. In 2016 she won by a margin approaching 40%. As long as the GOP didn’t nominate Denny Hecker or Tom Petters, they’d do fine.

    Second, there is a risk of having a GOP lt. guv, given the possibility of any sitting guv becoming incapacitated or passing, when that guv is 72 or 32. Should that happen, the GOP would likely go full Walker and pass voter suppression laws, bust unions, and create a fiscal crisis by giving the 1% tax cuts.

    The comparisons to 1978 are ridiculous. Dayton is not arranging his own appoint to US Senate. MN GOP Chair Carnahan’s shock that Dayton would appoint a fellow Dem he has a close relationship to is laughable. Did she expect he’d appoint Tim Palenty?

  7. Submitted by James Robins on 12/20/2017 - 03:59 am.

    Not a mess after all

    Thank you, David Schultz, for concise factual clarity.

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