There are a lot of questions still swirling around about Minnesota’s lieutenant governor.

Questions like: Can Republican Michelle Fischbach, the president of the state Senate, move into the lieutenant governor job in case of a vacancy, as laid out in the state Constitution, but still keep her job in the Senate? What’s the fate of a court case arguing she can’t do both jobs at once? And will this whole ordeal create a temporary tie in the Minnesota Senate, where Republicans control the chamber by a single vote?

All of these questions have been lingering for months, after DFL Gov. Mark Dayton appointed former Lt. Gov. Tina Smith to the United States Senate, triggering a rarely used clause of ascension in the Minnesota Constitution that put Fischbach, a Republican, into the job. The debate over the office is now playing out against the backdrop of the 2018 legislative session in St. Paul, where a handful of lawmakers from both parties are asking one more big question: Is there a better way?

“We are in a mess right now that we shouldn’t be in,” said Sen. John Marty, DFL-Roseville, who is part of a bipartisan group of lawmakers in the Legislature lining up behind a proposed constitutional amendment to address the issue — a move that would put a relatively simple question to the voters this fall: Should the governor be able to pick who replaces the lieutenant governor?

Appointment, not ascension

If approved by voters, the proposed constitutional amendment would allow the governor to pick a replacement to the lieutenant governor if there’s a vacancy in that office for any reason, be it a resignation or something worse, like death or severe illness. That appointment would be subject to confirmation by the state Senate, much like any agency appointment in the governor’s office. Yet Marty is open to negotiate that portion of the bill if some feel making the lieutenant governor appointment open to confirmation could get too political.

It’s not an unusual method. At the federal level, if there’s a vacancy in the office of the vice president, the president must nominate someone to replace him or her, an appointment which then must be confirmed by a majority vote of both houses of Congress. States like Alabama, Colorado, Ohio, Montana, Louisiana, New Jersey, Illinois and Indiana all have a similar systems for replacing their lieutenant governors.

That’s in part because, as in Minnesota, many states don’t elect the lieutenant governor on their own, but rather as part of a ticket with the governor. If the ticket wins, the governor prescribes the duties of his or her lieutenant. For Marty, given the close tie between the governor and lieutenant governor, it only makes sense that the governor should be able to pick someone from his or her own party, even in the case of an unexpected vacancy.

Dayton has already had two previous lieutenant governors, including Smith and former state Sen. Yvonne Prettner Solon, who opted not to run alongside Dayton in his 2014 re-election bid. Both of his previous lieutenant governors were Democrats, and if anything happened to the governor, as spelled out in the Constitution, another Democrat would have become governor. But if anything happens to 70-year-old Dayton now, Fischbach, an eight-term Republican senator from Paynesville, would become the state’s top executive. 

That’s not the system voters intended when they picked a governor and lieutenant governor together on their ballot, Marty said. “Governors are elected by the people, and they should pick who they are working with,” he said.

Rep. Steve Drazkowski, R-Mazepa, agrees. He’s one of a handful of Republican lawmakers signed on to a similar proposal in the House that would ask voters in November: “Shall the Minnesota Constitution be amended to require the governor to appoint, with the consent of the Senate, a lieutenant governor to fill a vacancy in the office of lieutenant governor, instead of having the president of the Senate automatically ascend to become the lieutenant governor?”

“It does allow the party and in power in the executive branch to continue to keep a lieutenant governor position in that party’s hands as the voters intended when they elected them,” he said. “It will avoid conflicts that we’re seeing now.”

‘Stuck with it’?

The current system isn’t only a problem for governors, who — as in Dayton’s case — potentially have to serve alongside a member of another opposition party. It’s also a raw deal for the Senate president, Marty said. 

In the court case brought over the current succession process, lawyers for the DFL argued the Minnesota Constitution requires the Senate president to become the lieutenant governor and forces that person out of the Legislature. They point to a clause in the Constitution that bars lawmakers from serving in two positions at once.

A Ramsey County judge recently dismissed the lawsuit, arguing it was not ready for the courtroom, but Democrats have left the door open to appealing that ruling after Fischbach takes votes in both her roles.

Marty doesn’t think the state Constitution allows Fischbach to serve in both roles at once, but even if Democrats win in court, he thinks the ruling still would still set a bad precedent. “The current system works perfectly if the Senate president wants to be lieutenant governor. If they don’t, will the courts force them out? She’s stuck with it whether she likes it or not?” Marty said.

He imagines it could make it harder to recruit people who want to serve as Senate president, who must sign all passed bills before they can get to the governor.

Minnesota state senators are elected to four-year terms (and aren’t on the ballot again until 2020), and even Marty admits he wouldn’t want to serve a single year as lieutenant governor alongside a governor who isn’t running again this fall — especially if the governor wasn’t in his party.

It’s also not a secret that many don’t think being lieutenant governor is all that appealing of a job. When, during the recent court case, Ramsey County Judge John Guthmann questioned attorneys about what is actually required of the lieutenant governor, he was told: Not much — other than “to inquire daily about the health of the governor,” Fischbach’s attorney Kevin Magnuson told him.

Five states don’t even have a lieutenant governor, and states like Illinois don’t have a system in place to replace the lieutenant governor if he or she steps down or leaves the office for any reason. The job simply remains vacant until the next election. The same is true in Missouri, where lawmakers are currently debating changing the system to allow the governor to call a special election to replace the lieutenant governor. The issue has come up amid calls for Missouri Gov. Eric Greitens to resign after he was arrested last month on a felony invasion-of-privacy charge.

But plenty of states have a similar system to Minnesota’s current setup, including Arizona, Connecticut, Hawaii, Idaho, Kentucky, New York and Pennsylvania. And a total of nine Minnesota Senate presidents have ascended to the lieutenant governor job because of a vacancy. All told, seven of those lieutenant governors served as the Senate president at the same time, after a 1898 Minnesota Supreme Court ruling allowed it. That decision is what Fischbach and Republicans have cited in their move to have her serve in both jobs at once, even if Democrats argue the Constitution has been amended since then to eliminate lieutenant governor’s job of presiding over the Senate.

Republican Senate Majority Leader Paul Gazelka, who is defending a razor-thin 34-33 majority in the chamber, said he doesn’t see the need for the amendment if the state continues “to do status quo” and allow the Senate president to also serve as lieutenant governor. Constitutional amendments do not need support from the governor to go on the ballot, simply a majority of votes in the House and Senate. “Why did we not do it in the ’70s, ’80s or ’90s or 2000s and beyond? Because we had a system that worked and worked from the beginning,” Gazelka said.

If Republicans lose in court and Fischbach is forced out of the Senate, it’s likely that she would run in a special election for her current seat, and resign from being lieutenant governor if she won. That would almost assuredly entail a hard-fought battle, however, with plenty of outside money and interest, given the stakes in taking control of the Senate. “I don’t know what the courts are going to decide,” Gazelka added. “That is a bridge I hope never to cross.”