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The constitutional mess created by Tina Smith’s appointment

Just weeks after DFL Gov. Mark Dayton and the Republican-controlled Legislature resolved a months-long legal battle, the appointment of Lt. Gov. Tina Smith to replace Al Franken could spark another one.

State Senate President Michelle Fischbach said she was confident she could do both jobs well at the same time.
Senate Media Services

Welcome to Minnesota, where lawmakers leap from one constitutional conundrum to the next.

Just weeks after DFL Gov. Mark Dayton and the Republican-controlled Legislature resolved a months-long battle over whether Dayton’s veto of funding for the House and Senate was constitutional, another potential battle has been teed up — this one over his appointment of DFL Lt. Gov. Tina Smith to replace Al Franken in the U.S. Senate.

The upcoming vacancy in the lieutenant governor’s office will set in motion the succession protocol outlined by the state’s constitution, which says the president of the Minnesota Senate “shall” move into the role. And while current state Senate President Michelle Fischbach, a Republican, said she intends to assume the job of lieutenant governor, she also plans to remain in her seat in the Senate. 

“Anyone know any good jokes?” Fischbach, a eight-term senator from Paynesville, asked reporters at an afternoon news conference Wednesday. “I’ve got one: A senator and a [lieutenant governor] walk into a bar, and she has to buy her own drinks!”

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It was a lighthearted moment in an otherwise chaotic day amid a situation filled with a lot of uncertainty. Democrats are pushing back on the idea that Fischbach can do both jobs, and Dayton has sought an opinion from Minnesota Attorney General Lori Swanson on the matter — a development that could set up yet another clash in the courts.

Republicans cite precendent … from 1898

Republicans are grounding their case for Fischbach filling both roles in a 1898 ruling from the Minnesota Supreme Court. In a memo, legal counsel for the Minnesota Senate said that ruling allowed the Senate president to also serve as lieutenant governor at the same time.

It’s happened two other times in state history, in 1929 until 1931, when Republican Sen. Charles Adams also served as the state’s lieutenant governor, and from 1936 until 1937, when Republican Sen. William Richardson did the same thing.

The state Constitution has been amended since then, but Senate counsel said the ruling “remains applicable.” That’s in part because neither the Senate president job nor the lieutenant governor is given executive duties as part of their role, the memo read.

Fischbach said she was confident she could do both jobs well at the same time. “I was elected by the constituents of Senate District 13,” she said. “I have a commitment to represent them in the Senate.” 

Democrats: You can’t hold two offices at once

But in Dayton’s memo to the attorney general, he cites a different provision in the Constitution:

“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,” the Constitution reads. “If elected or appointed to another office, a legislator may resign from the Legislature by tendering his resignation to the governor.”

“I’m not a lawyer, I’m told by my in-house legal counsel that the Constitution and the state statutes are clear, that the president of the Senate becomes the lieutenant governor and she cannot hold two offices simultaneously,” Dayton said. “My goal is to assure Minnesotans that we’re all following what’s prescribed in the Minnesota Constitution and in the statute without favor to one side or the other.” 

Complicating matters further is the thin margin of the GOP’s majority in the Minnesota Senate. Republicans currently control the chamber by a single vote, 34-33. DFL Sen. Dan Schoen is resigning from the chamber effective Dec. 15 because of a sexual harassment scandal, and a special election is scheduled for Feb. 12 to elect his replacement. If Democrats retain that seat and Fischbach is forced to leave the Senate and serve only as lieutenant governor, that would leave the Senate with a 33-33 tie, at least until after a special election is held to replace Fischbach. Her Stearns-County-area seat is solidly conservative, but Democratic groups would highly target it with the prospect of flipping control in the chamber, whose members are not back on the ballot until 2020.

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Senate Minority Leader Tom Bakk said a 1972 amendment to the Minnesota Constitution removed the duties of the Senate President from the lieutenant governor, who previously presided over the chamber instead of the president. That would prohibit Fischbach from serving in both roles and puts control of the Senate in play, he said.

“This appointment, and the subsequent ascension of the Senate President to Lieutenant Governor, means the Minnesota Senate will likely face two special elections this winter,” Bakk, DFL-Cook, said in a statement. “The balance of power in the Minnesota Senate will be up for grabs.”

Unanswered questions 

The situation creates some panic among Democrats, though, as well. If anything were to happen to Dayton, who has struggled with health issues in recent years, Fischbach would ascend to the governor’s office. Dayton is serving his final year of his second term in 2018.

For his part, Dayton joked Wednesday that he intends “to be alive” by the fall election and “even a couple months thereafter,” but he didn’t downplay Democratic concerns. “It’s a valid concern. Anything can happen to anybody in this world and in an ideal world this would not be unfolding.”

One possible scenario put forth by Democrats is to call a one-day special session, during which Fischbach would step down from the president job and the chamber would agree to elect a DFL Senate president. That person would immediately become lieutenant governor instead, and the chamber would then re-elect Fischbach as president. Dayton said he’s open to that possibility, but it’s not an option he’s actively exploring now.

“I’ll do my best to stay healthy so that she gets to be lieutenant governor for the next 400 and some days,” he added.

The situation creates strange bedfellows in the executive branch, where the governor typically selects who will serve as lieutenant governor. The governor has also typically delegated the tasks of the lieutenant governor, but that could be awkward for Fischbach, who has dramatically diverging priorities from the two-term DFL governor. 

Fischbach said she “seriously” doubts that she would support Dayton’s agenda, but, “That might not be part of what he asks me to do,” Fischbach said. “It’s historic because his lieutenant governor at that point would not be of the same party.” 

Dayton and Fischbach have exchanged messages and they plan to have lunch on Friday to talk about what’s next.

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Fischbach added: “It’s always an adventure here and this is our big adventure here this week.”