The tie-breaking vote in the Minnesota Senate, the vote that seals the DFL’s trifecta in state government, appeared in court on first-degree burglary charges this week.
During the early morning hours on April 22, state Sen. Nicole Mitchell was arrested in her stepmother’s home in Detroit Lakes, Minnesota. The criminal complaint says she wore dark clothes, put a sock on a flashlight and entered the home through a basement window. Mitchell told officers she was trying to take some of the ashes of her deceased father as well as some items of sentimental value.
The felony case against Mitchell, an Air Force reservist and onetime weather forecaster for KSTP-TV and Minnesota Public Radio, will play out in Becker County with her next court appearance set for June 10. But the more-immediate concern is how the incident will affect the final month of the Minnesota legislative session.
Each of the 34 DFL members of the Senate is the deciding vote when motions and bills pass 34-33. Because Mitchell is out of jail and still a member of the Senate, her vote will be the focus for the rest of the session, certainly for minority GOP members but also in any assessments for what might have happened had Mitchell not been there.
Any number of scenarios are possible between now and the end of the legislative session on May 20, from Mitchell resigning to her remaining as the centerpiece of a session marked by distraction and discord. Wednesday, the first day back after a Passover break, provided a glimpse of what might be to come: Senate Republicans filed an ethics complaint in the morning, and they next moved to have the ethics committee take up the case immediately with an expulsion of Mitchell as a possible outcome. DFLers, with Mitchell excused, argued against the motion which then failed on a 33-33 vote and canceled floor action on bills.
So what are the possible outcomes, and what are the odds of each taking place?
Business as usual
(Probability = Zero)
Once word spread of Mitchell’s arrest, nothing in the 2024 Minnesota Legislature was going to be usual. There have been drunk driving arrests, there was a House member without a proper driver’s license who also made unfounded allegations against the officer who stopped him, there were numerous allegations of sexual harassment. But a member getting caught mid-burglary? That’s a new one.
Now toss in the one-vote Senate majority and what losing a DFL member would mean.
Until Monday, the 2024 session was relatively boring. Unlike the chock-a-block 2023 agenda with a DFL trifecta passing sweeping changes and passing a record budget — both in spending and in tax reductions — not much was expected of 2024. House Speaker Melissa Hortman has frequently said nothing needs to pass, with the to-do list limited to relatively small spending increases, a capital construction budget and perhaps a handful of other items.
The Mitchell arrest could make even that agenda an overreach.
Mitchell Resigns
(Probability = Unlikely)
That was at least a possibility as the bizarre details of the arrest trickled out. While she later used Facebook to portray her trip from Woodbury to Detroit Lakes as an after-midnight welfare check on her stepmother, she told police she knew she’d done something wrong, saying “clearly I’m not very good at this,” according to the criminal complaint.
The arresting officers did have body cameras, and that footage could clear up any discrepancies or show evidence not cited in the criminal complaint. And Mitchell’s attorney has also indicated there’s more to the story.
But by Wednesday it started to become evident that Mitchell and the Senate DFL majority were going to try to stick it out — at least through the end of the regular session. Senate Majority Leader Erin Murphy on Tuesday called the behavior out of character for Mitchell and said she deserved due process. But Murphy also added: “In the coming days and weeks, Senator Mitchell must also have serious and difficult conversations with her colleagues, constituents and family.”
“I think it is important to us to conduct the work of the Senate in an orderly manner,” Murphy said on the Senate floor Wednesday. She decided to remove a handful of bills from the Senate floor calendar Wednesday and Thursday, “to pause to make sure we can conduct that work.”
Whether Mitchell resigns after the session adjourns is still an issue. But it is unlikely she’ll do so before then.
Yeah, but what if more details come out?
(Probability = Still pretty darned unlikely)
It is certainly possible that more information could come out that makes remaining in office untenable. And even a rushed special election in Woodbury would come after the constitutional adjournment of the 2024 session. Could that lead to a rare power-sharing agreement between the DFL and the GOP in the Senate?
The Republicans already are in consultation with majority Democrats over the bonding bill because 60% majorities are required to sell the bonds that pay for state and local construction projects. The four top legislative leaders have been in negotiations — including at a Maple Grove dinner Tuesday evening — over what the GOP wants in exchange, such as projects in GOP districts and funding for emergency medical services in rural areas.
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When Republicans controlled the Senate before the DFL trifecta, agreements between the House and Senate gave each some of what they wanted. Could a similar agreement keep the Senate moving forward with a compromise agenda?
If so, the House DFL would have to surrender on many of the policy issues they have placed into omnibus bills, stripping them down to basic budget adjustments and corrections to last year’s laws. And more-controversial items that so-far lack bipartisan support — cannabis changes and sports betting are two — would not advance.
“I think that would be an excellent way to end the session,” Senate GOP Leader Mark Johnson said of shared control. “Showing that Republicans and Democrats can get the work done.”
Senate DFL proceeds with 34-33 majority
(Probability = Likely)
Since the surprising result of the 2022 election when the DFL held onto the governor’s office, maintained their majority in the House and reversed the GOP claim to the Senate, the DFL trifecta has been the story. That massive policy agenda and the two-year budget included nearly everything the governor and the party caucuses had dreamed of. Then-Senate Majority Leader Kari Dziedzic held a narrow majority together, and rather than abandon issues that could cause the party trouble in swing districts, she modified bills to make them more palatable.
Murphy hasn’t been tested in the same way, but there were few signs that she wasn’t going to be able to hold her caucus together on key votes. Even Dziedzic’s treatment for cancer hasn’t kept the DFL from holding control.
All that makes it likely that the DFL will try to keep their governing majority in the Senate, which means Mitchell has to stay and Mitchell has to vote.
“She is a duly elected member of this body … she’s elected to represent the people of the district that sent her here and they deserve her representation,” Murphy said. “While this is an issue that is heartbreaking and troubling, we do have work to do before we adjourn on May 20.”
The ethics committee must at least take up the complaint within 30 days. But it doesn’t have to resolve it, and the committee, with two DFLers and two Republicans, has not taken clear positions on past complaints against both sides.
Senate GOP continues to raise questions, slow process
(Probability = Very likely)
“This body will be under a cloud of doubt,” said Johnson, who has called for Mitchell to resign. “Major pieces of legislation are going to be considered and pass through and, as we’ve seen in the past, pass 34-33.”
“This will be an issue we will continue to bring up and hopefully we’ll have more clarity in the days to come,” he said. “We will be asking these questions. Sen. Mitchell is the 34th vote. She can be the deciding vote in passing a bill. Until that is clarified through an ethics committee hearing, there’s going to be a large distraction going on.”
There are many ways for GOP senators to bring the issue up. The motion Thursday to order the ethics committee to advance the investigation is just one example.
Current Senate rules allow Mitchell to vote remotely, that is not attend floor sessions, and literally phone in her votes. But Johnson said Wednesday that “if there really isn’t an issue, she should certainly be here, on the floor, voting with us.”
Special elections this year will give the GOP control of the Senate
(Probability = Likely on at least one special election, unlikely on GOP control)
Members of the Minnesota Senate are not on the ballot this year — unless they’re leaving office.
DFLers feel confident that state Sen. Kelly Morrison can hold the congressional seat now held by U.S. Rep. Dean Phillips. He won that race with nearly 60% of the vote in 2022. The question is, does Morrison wait until she wins and is sworn in to resign her state Senate seat? Or does the Deephaven physician resign once the session ends?
The difference is significant because DFLers do not want her 45th Senate District seat to trigger an election held outside of the regular primary and general elections in August and November. That is, they don’t want an expensive special election next January with control of the Senate at stake.
The same political math would come into play if Mitchell were to resign. How could it be timed so that the race falls in line with the already crowded primary and general elections when the parties and interest groups already have a lot to do — and finance? Leading the list in state elections is all House members and party control of the House.
Could the DFL lose either race and lose the Senate? Mitchell won the 47th with 58.7% in 2022. The two House races that divide the district in two went to the DFLer by 60% in district 47a and 53% in 47b.
Morrison won her state Senate seat in 2022 with 56.3%. The two House races went to the Republicans with 53% in district 45a and to the DFL with 62% in 45b.
Both are certainly DFL districts, Mitchell’s more so. That’s not to say that if they appear separate from regular elections that millions of dollars won’t be raised and spent.
Peter Callaghan
Peter Callaghan covers state government for MinnPost. Follow him on Twitter @CallaghanPeter or email him at pcallaghan@minnpost.com.
