How the Minnesota Stalemate Ended
Politics, law, some bragging.
As you’ve surely heard by now, it’s over! Last week, the Minnesota House GOP and DFL finally brokered a deal, elected officers, and commenced what we still optimistically call “the People’s business.”
Throughout this series (Part I, Part II, Part III, Part IV), I’ve talked mostly about the legal arguments, because they’re interesting. I’ve avoided the political negotiations, because they weren’t. However, the legal resolution of the standoff is so closely tied to the politics that I have no choice but to start with a (brief) overview of the negotiations. I will then proceed to the law: an impressionistic recap of the oral arguments, followed, finally, by an analysis of the briefs. (Then, extra-finally, by some frank self-aggrandizement.) The case is moot now, but I will dive deep so that, the next time Minnesota has a constitutional contretemps like this one, in 45 years or whatever, some future litigator will find this blog post1 and use all my arguments to finally prove which 2025 Minnesota politician is a cheating turd.
(Answer key at bottom of article!)
Aggressive Negotiations
Obviously, now that it’s over, both parties have claimed complete victory, while extremists in both parties lament that their leaders are “spineless cowards” who “caved.” The orbit-altering levels of spin from both camps makes it difficult to put together an account of the negotiations. It has taken me a week.2 Sorry to those readers who’ve been waiting on the edges of their seats.
I’ve drawn evidence from primary source documents, news reporting, reading between the lines, and Twitter rumors. I’m not certain I’ve got everything correct, but I am confident this is as close to correct as you’re going to see in a public blog post based on mostly-public information.
After Rep.-Elect Curtis Johnson (DFL-Roseville) got disqualified by a judge on December 20, the GOP enjoyed a 67-66 majority in the House. The GOP believed it was therefore entitled to exercise majority powers:
The GOP Majority-Rules Position
GOP majority elects the Speaker of the House;
GOP majority appoints a controlling majority of each committee, including their chairs;
GOP majority may create special-purpose committees with subpoena power, especially to investigate the various fraud scandals emanating from Gov. Walz’s administration in recent years;
GOP majority unilaterally decides election challenges, especially the contested race in House District 54A, where Brad Tabke (DFL-Shakopee)’s 14-vote win had (allegedly) some suspicious circumstances.3
Meanwhile, the DFL believed that, since Johnson’s seat would likely4 be filled by a Democrat, the House was effectively tied and the GOP therefore needed to stay committed to the original plan from November, before Johnson was disqualified. That plan had been a “power-sharing agreement” where Republicans and Democrats would have split power exactly evenly:
The DFL Power-Sharing Position
No single Speaker; instead, the two party leaders would serve as co-speakers or rotate the speakership.5
Evenly-divided committees with co-chairs (one from each party) wielding equal powers.
No fraud committee. No party ever supports investigations into its own officials’ alleged misconduct, and the DFL is no exception.6
Bipartisan review of Brad Tabke’s challenged election.
By mid-January, however, the DFL found itself in a difficult position. The GOP was prepared to start the session with their slim, arguably temporary majority. The GOP would be able to use that majority—no matter how temporary—to get everything it wanted. The special election to replace Curtis Johnson had already been delayed, and a court ruling against Brad Tabke’s election was still a possibility. The DFL was considering a quorum-bust, but this was very risky. It might cost them dearly with the voters, and the Minnesota Supreme Court might not even uphold it; it was a close question.
From this weak position, the DFL’s Rep. Hortman secretly offered a compromise, apparently very late on January 13,7 the night before session started:
The DFL’s Secret Compromise Proposal
The Republican leader would get the title of Speaker, but not the powers of the Speaker. The powers of the Speaker would be divided evenly between the two parties.
Democrats would get evenly-divided committees with co-chairs.
Republicans would get their anti-fraud committee, but without subpoena power.
Democrats would get a guarantee that Brad Tabke keeps his seat.
Deal is cancelled automatically if either side (somehow) achieves 68 seats.
In mid-January, the Republicans thought they held the high cards. They thought they had both the legal authority and the political will to get everything they wanted, so they rejected this last-ditch compromise proposal, which was immediately taken off the table.
Within two weeks, however, a district court had sided with Brad Tabke, and the Minnesota Supreme Court had sided with the DFL on the definition of a quorum, legally blessing the quorum-bust. Suddenly, the DFL held all the cards! If they just held out until Johnson’s seat was filled in March, they could get everything they wanted. After that date, the DFL’s public talking points reverted to backing the original power-sharing agreement. They continued to offer one concession to keep the negotiations alive—the fraud committee—but the rest was off the table.
Then, suddenly, last Tuesday, February 4, that changed.8 The Democrats started to make concessions again. Within twenty-four hours, the DFL negotiators offered Demuth the Speakership—not just the title of Speaker, but the title and most of the powers, too. (Not all the powers, but most of them.) It was an abrupt reversal. The DFL was moving from one of their toughest negotiating positions to their deepest compromise yet.9 On Wednesday, February 5, the parties officially struck that deal:
The Final Deal
The Republicans got the Speakership and most of its powers, but with some meaningful limitations.
Democrats got evenly-divided committees with co-chairs.
Republicans got their anti-fraud committee, but without subpoena power.
Democrats got a guarantee that Brad Tabke can’t lose his seat without DFL support, but Republicans kept the right to hold hearings and make them as embarrassing as possible.
This demands the question:
Why Did the Democrats Start Making Concessions on Tuesday, February 4?
Various explanations for the DFL’s quick turnaround have been offered:
The DFL wanted to head off recall petitions the GOP had been circulating. However, the state GOP is still circulating them, and it’s not the first time the state party has done so. The DFL has never found these petitions very scary.
A KSTP/SurveyUSA poll Wednesday indicated plurality support for taking back DFL’ers pay for quorum-busting. However, that same poll showed a plurality wanted the GOP to agree to the original power-sharing deal… and the poll came out Wednesday, the day after the DFL started to make concessions. This is a bad explanation for why the DFL started making concessions. (However, the poll might help explain why the GOP finally said “yes” to the DFL’s final offer.)
The combination of time and public pressure alone forced the parties back to the table. (This was Rep. Hortman’s deflection when asked directly if the impending court case had anything to do with the deal being struck.10) Yet the Democrats’ movement from Monday to Tuesday was very significant, shifting immediately from one of their hardest-line positions to their most generous position to date. A shift of that magnitude doesn’t usually happen overnight if the only factor is non-specific “public pressure.”
Speaker Demuth has alluded to another explanation, and both my public research and other sources suggest that this explanation is correct:
The Democrats were trying to strike a deal before the Minnesota Supreme Court ruled in the quo warranto lawsuit against Secretary of State Steve Simon. A quick timeline:
That case was filed on Thursday, January 30 (as De Civ covered).
Secretary Simon offered his defense in the afternoon on Monday, February 3, when the DFL was still sticking to its guns.
Demuth & Niska made their reply brief in rebuttal late in the afternoon on Tuesday, February 4, the same day the DFL started making concessions.
The deal was announced Wednesday night, February 5—just in time to head off oral arguments slated for Thursday, February 6. (An order had been expected Friday, February 7.)
The Democrats were always likely to lose at least half this case, as De Civ explained the night before it was filed. Sec. Simon had no right to usurp the power to make motions from the House. Tellingly, Sec. Simon offered no legal defense for his actions in his defense brief, nor (as we shall see) any defense during oral arguments.11 Simon knew what he was doing was unlawful. If he were a Republican, the Star Tribune would have declared Democracy In Danger two weeks ago, but they have, ahem, other priorities.
However, that still left the question of the Republican House minority’s power to compel the attendance of absent members. Yet, as the case progressed through the week, Sec. Simon was gradually beaten on this point, too. By the end of the case, it was fairly clear Sec. Simon and the DFL were going to lose the whole thing. That would have left the GOP holding all the high cards again.
In my view, then, the most viable theory of the negotiations is that the DFL realized it was likely to lose this case. Thus, they sought to make a deal before oral arguments in order to maximize their remaining negotiating position and, frankly, save face. On this theory, Republicans accepted the concessions because they didn’t want to risk everything (again) on a court ruling and its fallout.12 A bird in the hand is worth two in the bush!
The Case
The reason I am so confident the DFL was going to lose the case is because, due to some fumbling by the Secretary of State’s office on Wednesday night, the Minnesota Supreme Court still held oral arguments on Thursday, February 6, despite the fact that everyone agreed the case was going to be moot within a few hours. We got to watch the advocates battle it out, and we got a good bead on what the justices themselves were thinking, even though the court (justifiably) dismissed the whole thing with no ruling twenty-four hours later.13
I had planned to attend oral arguments in person, but, because of the confusion about whether oral arguments were happening, I ended up watching on my computer at home.
It was a very Minnesotan oral argument. Both advocates maintained perfectly calm demeanors, level voices, and polite words. Instead, they channeled all the intense feelings of a high-stakes oral argument into their hands:
However, in substance, the argument was a massacre:
The justices—all of whom are DFL appointees—just let GOP advocate Ryan Wilson talk.
He gave his opening spiel. All advocates attempt this. At the U.S. Supreme Court, they rarely get more than three sentences in before a justice interrupts with a question. My understanding is that the Minnesota Supreme Court is a lot more relaxed, and will often let an advocate talk for a minute before jumping in. Wilson got through his entire spiel, all 2.5 minutes of it, and managed to say those wonderful words, “I’m happy to answer any questions the Court may have.”
They didn’t have any. Wilson stared at them. The justices stared back. Wilson waited a long five seconds, nodded, pulled out his notes on Sec. Simon’s brief, and started rebutting specific arguments Simon’s team had made.
Finally, after letting Wilson talk uninterrupted for five minutes, Chief Justice Hudson asked a question: could Wilson please adjust his microphone? “You’re a little bit hard to hear.”
She did follow that up with a question about some non-binding obiter dicta in State ex rel. Palmer v. Perpich (1971), where the Minnesota Supreme Court said, “In the absence of a majority of the members of the senate necessary to constitute a quorum, all they can do is to meet and adjourn.” Sec. Simon’s team has relied extensively on this quote throughout this litigation, even though it is ripped out of context, and Chief Hudson was finally asking the GOP to directly respond. This was a softball question which Wilson duly knocked into deep left field.
This broke the dam, and a conversation finally ensued between Wilson and the justices, but it was a friendly discussion. They came up with a couple skeptical questions (e.g. “Does your whole argument depend on the ‘it’ in the constitution referring to the ‘smaller number’?”) but accepted the (solid) answers they received without much follow-up. They finally let him sit down with seven minutes left on his clock, which is unusual.14
Peter Farrell then took the podium on behalf of Sec. Simon and suffered through the most uncomfortable twenty-six minutes of oral argument I’ve ever seen.15
The justices did let Mr. Farrell get through most of his opening spiel, but then Chief Hudson moved in with a question that began, “One of the things I have difficulty with, with respect to your argument…” Farrell started an answer, but Hudson quickly interrupted, “I’m not sure it’s that.” These are not words you want to hear at the podium.
As Farrell struggled to explain to a skeptical panel why Demuth & Niska didn’t have standing, Justice Thissen asked, laconically, “Who would have standing?” This launched a six-minute colloquy in which Justice Procaccini showed that Sec. Simon’s position would allow a rogue Secretary of State to unilaterally dismiss the House (even if it had a quorum!),16 Farrell tried to “pivot to the merits,” Chief Hudson didn’t let him (!), and then finally Farrell simply announced, “Turning to the merits…” and abandoned the standing issue.
It was during this colloquy that I screamed aloud at my computer, “Oh my God he KILLED him! He’s DEAD!” and my children came running into the room. I had forgotten they were at home, and they thought I had just streamed a murder. In a sense, I had. Even as Farrell pivoted to his merits argument, Chief Justice Hudson soon stopped him with some of the most dreadful words you can hear at oral argument:
That was a helpful explanation [of your position], but it just seems like you’re working so hard to get there. …Why isn’t [Wilson’s interpretation] the easiest way to read it? That just seems to make logical sense.
You don’t have to know anything about the law here to see that this was a terrible oral argument for Sec. Simon’s position. The last time I viewed oral arguments this lopsided was when the U.S. Supremes unleashed all batteries on my side in Trump v. Anderson (recapped here).
To be sure, it seems to me that none of this is Farrell’s fault. Last year, in the Trump Disqualification Suit, I had some harsh words for (charming) GOP advocate Reid LeBeau, who offered bad defenses of stupid arguments he didn’t need to make. Farrell’s problem wasn’t his presentation. In fact, he bore up manfully under withering fire from the justices which would have reduced me to a puddle of tears curled up on the ground. He kept making the case his office had instructed him to make.
The problem was that, for obviously political reasons (which Farrell was forced to implausibly deny, once again), Sec. Simon had ordered Mr. Farrell to make a crap case that was already half-doomed on Monday and (likely) full-doomed by Thursday. Farrell came to the podium, I presume, hoping for a lifeline, some part of Wilson’s case that the justices were skeptical about that he could latch onto and attack. (Nicholas Nelson, one of Wilson’s co-authors, did essentially that in last year’s Trump case, and it worked a treat.) When no lifeline presented itself, all Farrell could do was perform his ethical duty as a lawyer: zealous advocacy for his client, even though his client’s position was no longer defensible. He did that as well as anyone could ask.
Nevertheless, Wilson ate him for lunch.
Shoulda Checked the Statutes
I’ve now several times alluded to Sec. Simon’s bad position somehow becoming worse over the course of last week. It’s time for me to explain that.
After making the usual jurisdictional arguments (which the justices swatted aside at orals),17 and after quietly abandoning his position that he could simply stick his fingers in his ears and prevent the Republicans from making motions like the motion to adjourn, Simon turned his attention to the legislature’s power to compel absent members, rooted in the Minnesota Constitution’s quorum clause:
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.
Simon’s legal team argued (as his supporters have telegraphed for weeks) that the Minnesota Constitution gives power to the House, as an institution, to set rules for compelling the presence of absent members. Since the House hadn’t yet organized (they argued), such rules did not exist and could not be created until there was a quorum and the House finished organizing. Therefore, the “smaller number” of Republicans present at the Capitol were stuck. They couldn’t finish organizing the House without the absent members, and they couldn’t do anything about the absent members until the House finished organizing.
Simon’s team pushed this point quite hard, much harder than I expected. They argued, without qualification, that “Minnesota’s Constitution does not grant [the House] any specific authority to compel absent members before the body is organized,” and that it therefore “has no authority… to compel the attendance of absent members.”
In support, Simon & Co. pointed out that the House normally compelled the presence of absent members using the sergeant-at-arms, but no sergeant-at-arms can be named until after organization, so clearly the state constitution’s framers understood that the compel power was only going to be available to the House after organization. Team Simon noted that this would all cost money, and the framers clearly hadn’t intended a minority of the legislature to be able to spend money on its own recognizance. Team Simon argued that allowing the unorganized House to fine absent members would infringe on the power to set compensation exclusively “by law,” described in Article IV, Section 7.18 Since the framers surely didn’t mean to allow an unorganized minority to do any of those things on its own recognizance, the Minnesota Constitution should be read to forbid the House from compelling absent members, unless the House’s own rules provide for it—which is impossible at the start of the session, since the unorganized House has no rules.
If you have been following De Civitate’s coverage of this case, you might be pretty confused right now. After all, as you know, Minnesota enacted a statute in 1858, immediately after the Constitution was framed, which allowed all these things. It specifically authorized the House to compel the presence of absent members before organization. It authorized them to appoint an officer to arrest absent members in case a sergeant-at-arms had not yet been appointed. It implicitly allowed them to spend money to that end, and explicitly allowed them to fine absent members, regardless of the effect this would have on their compensation. The framers had no problem allowing an unorganized minority of the House to do all this!
Why, then, would Sec. Simon’s office make a set of arguments that seemed so much in tension with the statute of 1858? Did they think the statute of 1858 was unconstitutional? Did they think it meant something different from what I thought? Did they want to avoid the awkward problems that result from acknowledging it?
At oral argument, we learned there was a simple answer: Sec. Simon’s office was not aware of the statute of 1858 until they read Demuth and Niska’s reply brief on Tuesday night:
FARRELL: [Demuth and Niska] cite, in their reply brief, an 1858 law, and that is a law that we have since confirmed. We first became aware of it in the reply brief.
Obviously, since the statute of 1858 directly disproves most of the Secretary’s arguments against the unorganized House’s power to compel, Mr. Farrell had to shove the gear into reverse, slam the brakes, spin the wheel, and attempt a 180-degree turnaround at speed. His argument at orals became the one you would have expected from the get-go: sure, sure, sure, the 1858 statute shows that the framers thought the House could do all these things, but only where specifically authorized by law. (This was the counter-argument I proposed a couple weeks ago.) This wasn’t the argument Simon had made in his brief, though, and it was very difficult for Farrell to backpedal into it at orals when his team hadn’t laid the groundwork in the brief.19
Indeed, Simon’s team never fully got a handle on the 1858 statute at all. Farrell claimed at oral argument that the statute (formally titled “An Act to Provide for the Organization of the Legislature”) was repealed in 1894. This is false. The statute was repealed in 1866. It would have been very difficult for the legislature to repeal the statute in 1894, since the Minnesota Legislature did not meet in 1894!
I wrote to Farrell’s office seeking clarification. Their press officer linked me to a page in the 1894 statute book that reprinted the original 1866 statute. Simon’s legal team appears to have confused this reprint with the original repealing act. (They did not reply to my follow-up questions.20)
Moreover, this repeal didn’t accomplish what Team Simon claimed it accomplished. In the original 1858 statute, there were 14 sections. Only one section, Section 12, dealt with compelling absent members. The legislature did repeal the 1858 statute in 1866… but they saved section 12. They re-enacted it, word-for-word, as Chapter III, Title II, Section 13.21 As I have described before, the compel-absent-members provision survived several subsequent revisions in 1873 and 1894. In fact, the provision appears in the very same book that Farrell’s office sent me to prove that the provision had been repealed! (Section 229!)
The compel-absent-members provision wasn’t extinguished until the 1905 Revised Laws, Chapter 108, §5518.22 I don’t know how the Minnesota Office of the Solicitor General so badly misread the statutory history, but I’m happy to publish the correct information for the quorum-clause litigators of the future.
The Text
Since Farrell was bogged down trying to repair the damage caused by Secretary Simon overlooking the 1858 statute, Wilson had an open field on which to press his textual argument, which was simple, attractive, and exactly what De Civ previewed:
Our 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.”
The antecedent of “it” is the “smaller number.”
There are lots and lots of grammatical and ordinary-language reasons to believe this. (The reply brief does a much better, and much more convincing, textual analysis of this than I did in my January 30 article.)23
This argument is probably strong enough to settle the case by itself. From the justices’ reactions at oral argument, I think it might have, even if the 1858 statute had never emerged. As Chief Justice Hudson said, “It just makes logical sense.”
I expected Simon and his team to press the only reasonable rebuttal I could think of: the Minnesota Constitution’s quorum clause was (like many other states’) based on the U.S. Constitution’s quorum clause, which had slightly different language with very different effect, and so our constitution should be construed to have the same meaning as the federal one. I expected lots of quotes from Cushing’s Legislative Assemblies to establish some kind of original public meaning here.
But, no, while Sec. Simon’s brief gestured toward how the U.S. Congress’s compel power works, it made no textual comparison with the federal Constitution. He had already hung his hat on the “there’s no way the framers intended all this stuff” argument, not realizing that the framers had enacted “all that stuff” in the 1858 statute. At oral argument, Farrell was left making a strained textual argument while protesting that “the Minnesota Constitution is not a document where that type of hypertextualism gets you so far.”24 This is where Chief Justice Hudson told Farrell, “[I]t seems like you’re working so hard to get there.”
Finally, Precedent
This left just a handful of cases Simon’s team cited as favorable authorities, without much success. (I’m including this section mostly for future litigators, so, if you get bored, you can skip.)
The Florida Case
Sec. Simon boldly cited 12 Fla. 653. I say “boldly,” because, as we discussed when I previewed this case, 12 Fla. 653 clearly supports the Republican position, not the Secretary’s. Sure enough, Simon heinously misquotes the opinion in order to try to force it to say what he wants it to say. Here, this is delicious, take a look at the quote from Simon’s brief:
See Op. of Justices, 12 Fla. 653, 661 (1868) (Randall, C.J., concurring) (noting the validity of the senate’s actions depended on more than just the presence of a quorum, as its ability to “transact business of any kind” also required the chamber to be “in actual legal session, duly organized and competent”).
Now compare to the actual quote from that case (the words Simon quoted are italics; the key words Simon carefully omitted are bold italics).
It then becomes necessary to inquire whether the Senate of this State was in actual legal session, duly organized and competent to transact business of any kind; for unless this be the fact, and a constitutional quorum be present, it could do no business as a House of the Legislature, except to adjourn and to compel the attendance of absent members.
The very quote Simon used in his brief directly opposes his central position in this case, and he just cuts out the bad part and hopes we won’t notice!
Talk about cojones! Citing this case was cojones in the service of bald-faced deception and lawlessness, but still! Cojones! Maybe Simon should apply for a job in the Trump Administration!
That’s not even the best quote for Demuth and Niska in this opinion! (Ctrl-f for “contradistinguish.”)
The Nebraska Case
Simon went on to quote an 1872 case from Nebraska, People v. Parker (3 Neb. 409), where a certain Justice Lake, in a concurring opinion, expressed a belief that a legislature “not… in legal session” has “no authority to compel the attendance of absent members.” Let’s learn the facts of People v. Parker, both because it makes Simon’s office look ridiculous and because they are actually quite funny. Justice Crounse even complains in his opinion that the facts “have made the character of the state the subject of jeer abroad,” and, well, yeah, sorry, Lorenzo, but here’s what went down:
Before all this started, the Governor was impeached and removed from office.
Under Nebraska law, the Secretary of State became Acting Governor.
The Secretary of State (William H. James) left the state on business.
Under Nebraska law, the President of the Senate becomes Acting Governor if the Secretary of State “be absent from the state.” This clause apparently had never been tested, and it doesn’t look like most people involved even remembered it… but the President of the Senate, one Isaac Hascall, decided he was now the governor.
However, Sen. Hascall did not actually tell anyone he was now governor.
Instead, Hascall went over to the state Capitol and told James’s private secretary that he needed to borrow the Great Seal of the State for a minute in order to certify someone as a notary public. The secretary handed him the seal.
The paper wasn’t a certification for a notary public. It was a proclamation calling the legislature into special session the following week! PSYCH!
The Secretary of State, James, heard about this and immediately returned to the state. Two days before the (putative) special session started, he issued an order cancelling the special session.
Hascall said that an Acting Governor had the authority to call a special session, but not any authority to cancel a special session once called, so (Hascall claimed) James’s cancellation order was invalid. Hascall and his supporters showed up this cancelled, possibly never-legitimate, special session.
James tried to prevent Hascall & Friends from entering the building, but they “overcame his resistance, and, taking possession, proceeded to organize.”
Hascall’s gang then elected a sergeant-at-arms (a guy named Delos Parker) and instructed him to compel the attendance of absent members by arrest. Parker arrested a legislator named A.W. Tennant, who had stayed home, apparently because he didn’t believe this was a legitimate call of the legislature. Tennant sued for habeas corpus on the ground that Parker had no authority because the session was not legitimate.
Nebraska’s Supreme Court agreed. They didn’t address the question of whether Hascall’s sneaky call to a special session was valid,25 because a majority agreed that James’s order cancelling that special session was also valid. The problem with compelling the presence of absent members here wasn’t that validly elected legislators gathered in valid session had failed to complete the process of organization (as in Minnesota’s case); the problem was that the legislature wasn’t in legal session at all.
This case just obviously isn’t applicable to our situation in Minnesot. This case, and even that specific quote, could only have supported for Simon’s case if Simon had taken the position that the legislature wasn’t in session at all. That would have been tricky (as we’ve discussed), but, more to the point, it would have made it illegal for Gov. Walz to schedule the special election to replace Curtis Johnson in District 40B—and the DFL was holding out from a quorum specifically until the 40B election happened!
The Maine Case
Simon also quoted an 1880 case in Maine (Opinion of the Justices, 70 Maine 570) which held that “[n]either house, without a legal organization formed and without legal officers chosen, [can] compel the attendance of absent members.” That’s a pretty good quote for Simon, but, once again, it’s important to take note of the context.
Once again, this was not a case where duly-elected legislators legally formed at the appointed hour, took their undisputed oaths, and tried to use their power to compel the presence of absent members. In this case, the corrupt governor, who had lost the fall election, attempted to invalidate a bunch of votes after the fact in order to change the winners in several elections—enough elections to give him control of the legislature and thus allow him to (for complicated reasons) steal another term. Civil war in Maine was headed off, according to most accounts, by the steely-eyed determination of Joshua Chamberlain, the hero of Little Round Top at Gettysburg, to keep his state’s democratic-republic alive.
(Gosh, I love American history. Our democracy has been way more, um, rambunctious than AP Gov class ever admits.)
In this Maine case, there was a body calling itself the state senate which was trying to exercise the power to compel the attendance of absent members. It was composed of some legally-elected Fusionist-party members and quite a few usurpers who had shown up bearing fraudulent certificates of election. However, the legitimate state legislature (composed of Republicans) had already met and adjourned. Of course an illegal usurper legislature doesn’t have the power to compel the presence of absent members! It’s a fake legislature! They couldn’t compel absent members for the same reason that Donald Trump’s fake electoral votes in 2020 couldn’t be counted in the electoral college! That’s completely different from the real legislature of Minnesota compelling members in order to get the legal session started!
Even so, there is some real juice for Simon in the full quote:
Until a legal organization is completed, there is no officer in either house to issue a warrant against the absent member. No such power was committed, or intended to be committed, into the hands of persons not comprising and acting as an organized and completed house. It has frequently happened in our history, that legislative bodies have been delayed days, and sometimes weeks, without being able to complete an organization for the want of a quorum.
Wilson claimed this was non-binding dicta, but I don’t think it was. I therefore agree with Simon’s claim that this is his “most persuasive authority.” However, Maine’s constitution has notably different language from ours: it explicitly holds that “each House” must provide a manner and penalties for the compulsion of absent members, not the “smaller number” that is trying to compel them. This is a good textual basis for the Maine Supreme Court’s claims, but it’s not obvious why it would apply in Minnesota. Wilson’s brief makes this point and stops there.
However (as Wilson indicated at oral argument), it’s not even clear that this interpretation is truly the law of Maine! The Maine case twice cites an earlier case with the same name, Opinion of the Justices, 35 Maine 563 (1854), carefully distinguishing it on a couple minor points, but treating it overall favorably.
In that earlier case, the justices faced a situation much closer to Minnesota’s. There was some kind of partisan shenanigans going on over the recent election. (I’ve failed to uncover the details, but it looks from the record like both parties were at fault.) Some duly elected state senators refused to report to work in order to deny quorum. (They also denied they had actually been elected, again to deny quorum.) The state senate then attempted to do several things in order to organize without them, including attempting to compel the presence of those absent members. The court got involved and ruled that less than a majority of senators counted as the full Senate when they exercised powers necessary for organization—including the power to compel absent members:
If the Governor and Council should ascertain that a majority of the whole number of Senators had been elected, and should summon them to appear at the appointed time and place, and a sufficient number to prevent a quorum should deny that they had been constitutionally elected, or should for factious purposes willfully refuse to attend, thereby to prevent a quorum, those who should attend, being less in number than could form a quorum, would then constitute a House or Senate expressly authorized to compel the attendance of the absent members.
In fact, the court ruled, even a single senator could exercise this power by himself, so long as that senator was duly elected and sworn into legitimate session (p572). If I understand the opinion correctly, the justices held that such a senator could “organize” himself into the Maine Senate and this organization would be valid (though he would still lack a quorum to transact legislative business).
This flows from the underlying principle of the decision: because a legislature must be able to obtain a quorum in order to form a constitutional government, the court reasons, the Maine Constitution must be read to provide the legislators with whatever power is necessary to obtain that quorum, even at the start of session, even without provisions made by law:
[The quorum clause] should not receive such a construction, without the most urgent necessity for it, as would under any conceivable circumstances prevent the organization of the Legislature according to the provisions of the constitution, and leave the State without a constitutional government, to be governed by one existing, and organized only as a necessity; or such construction as would prevent the performance by the Senate of duties expressly required of it, and which cannot be performed by any other body or branch of the government, according to the provisions of the constitution.
The opinion was fractured and hard to follow, but I believe the justices agreed unanimously that a minority of unorganized, duly elected Maine senators could, under its constitution, compel the attendance of absent Maine senators.
The whole case goes on in this vein.
Read in the light of this 1854 case, the 1880 case looks like much less of a slam dunk for Sec. Simon—even if Minnesota had the same constitutional language as Maine, which it doesn’t.
The Leftovers
Finally, Simon cited a couple of state cases involving compulsion of absent members by sergeants-at-arms in a strained attempt to show that only officers appointed by a House majority can compel absent members, but the discovery of the statute of 1858 nuked this line of argument.
It’s easy to confuse the issue with somewhat-on-point precedents. Precedents are complicated and nuanced. It takes a lot of work to explain each one to a court. Trump v. Anderson came out the way it did in large part because the Democrats failed to get the justices (except Barrett) to understand what Griffin’s Case actually meant. If this case had reached the point where it would have been settled on precedents, I don’t know which side would have prevailed. Clearly, I think the Republicans had better precedents, but I also thought that in the quorum case, and the Republicans still lost. Just imagine if this court had hung on convincing the justices to read the complicated mess of 70 Maine 570 through the lens of the even more complicated mess of 35 Maine 563. It could have come out anywhere.
Fortunately, this case never really reached the precedents, because it seems the justices had more or less made up their minds based on the text of the Minnesota Constitution, as elucidated by (among other things) the 1858 Minnesota statute, and on Sec. Simon’s failure to even attempt a defense of his obviously unlawful actions as presiding officer.
You’re really not supposed to read the tea leaves from oral arguments, but, since we’re never getting an order in this case, we don’t have a choice, and I don’t even feel particularly bold saying it: the Republicans were going to win this case down the line.
No, Wait: Finally, Bragging
Let’s pull this all together.
Here are some facts I’m pretty confident about:
On Monday, when he posted his brief, Sec. Simon had a pretty bad legal argument. However, he had anticipated and was passably prepared to reply to (or, at least, dodge) most of the arguments that Reps. Demuth and Niska were going to make in their briefs.
On Monday, then, the DFL negotiators knew26 they might lose this case, but they were still confident enough to maintain their hardline position.
On Tuesday, something changed, which led the DFL negotiators to suddenly start making huge concessions.
The main thing that happened on Tuesday (that we know about) is that Demuth and Niska’s reply brief came out.
We now know, from oral argument, that Sec. Simon’s office found out about the 1858 statute—which gutted a surprisingly big chunk of their Monday argument—when they read that reply brief.
I cannot be sure that these events are all directly connected. There are a number of alternative explanations,27 and there was a lot in the reply brief that was great, not just the 1858 statute.28 Nevertheless, it’s easy enough to draw a line between the Democrats being caught flat-footed on Tuesday by the 1858 statute and their decision to concede the speakership and many of the Speaker’s powers to the Republicans that same day. Maybe getting ambushed by the 1858 statute played a small role, or perhaps a large one, but it seems likely, at least from where I’m sitting, that the Republicans’ discovery of the 1858 statute helped make Lisa Demuth the Speaker.
Here’s the brag. You’re free to believe it or not, because I’m not naming my source.
Word has reached my ears that, on the day they first filed the lawsuit, the Republicans were also unaware of the 1858 statute. Their legal team only discovered it because someone forwarded them De Civ’s January 30 article discussing it.
(The Democrats, apparently, are no longer reading De Civ.)
So, thank you to everyone who sent me emails, PMs, and texts back on January 14 asking me to please explain what the heck was going on in the state legislature. Originally, I was planning to just write a quick Facebook comment about legitimacy crises in general, link back to my “Review of Ross Douthat's Review(s) of Civil War,” and call it a night.
Instead, you got me looking deeply into the standoff, we all learned some things, Minnesota now has its first Black female Speaker of the House, and there’s good reason to believe that there’s at least some connection between those three facts.
We’ve had a lot of fun at De Civ over the years. (Can you believe it’s only been a year since we helped fix the Constitution at the National Archives?) Still, I think this is the first time we’ve done anything quite like this. Thanks for being part of it!
ANSWER KEY (from the intro):
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NEXT TIME: Between the (planned) review of The Wicker Man and this (unplanned) series, I churned out something like 30,000 words this month. I really am taking a few weeks off this time. I’ll be back with (probably) a Worthy Reads in March. I know I also still owe subscribers a review of Gods of Egypt, in honor of our presidential illegitimacy problem.
If you just discovered De Civ and are looking for some political content to slake your thirst, I think my election post-mortems are holding up pretty well, and, for a bigger scope, my series Some Constitutional Amendments is provocative. Also, I saw a ton of traffic from PowerLine in my traffic stats recently, but I can’t figure out what article it came from, so if you saw De Civ mentioned there, please explain to me in the comments!
CORRECTIONS: In the section on the Maine precedents, I had two paragraphs that were almost identical, so I deleted the duplicate. (14 February 2025 1:41 PM)
As we will see soon enough, this is not as unlikely as it sounds.
Also, I caught a cold, which meant I kept falling asleep at my keyboard. The travails of blogging!
It is worth noting that, according to rumors I consider reliable, plus some revealing comments in the party leaders’ February 6 press conferences, the GOP evidently did not actually have the votes to deny Tabke’s seat. Some in the caucus thought he should be seated. They insisted on the power of review, and they certainly were publicly threatening to unseat him, but this appears to have been a bluff so they’d have a chip to trade away in negotiations. (Also, it seems that some members felt quite strongly that Tabke should not be seated, so keeping this chip in play placated those members.)
In practice, the GOP’s highest priorities appear to have been: gaining the title of Speaker, establishing the fraud committee, securing the Speaker’s full powers, Republican majorities on other committees, and getting subpoena power on the fraud committee, with the Tabke seat in last place due to their likely inability to actually do anything with it.
My spitball forecast is that the GOP has only a 5-10% chance at winning the special election for Johnson’s seat in District 40B. It’s not outlandish to imagine a Republican majority, but it’s very unlikely.
The details were either never clearly decided or never publicly announced, but both parties talked a lot about “co-speakers” during this standoff and rarely about rotating speakers, so my guess is they were leaning toward the first.
The usual defense is to call any investigation a “partisan witch-hunt.” Due to the partisan nature of political oversight, and the desperation of the out-party to get good campaign sound bites, this is nearly always at least half-true.
Also, if you look closely at the record, it’s hard not to notice that the new oversight committee was always the first chip the DFL traded away. They wanted to deny the committee subpoena powers, but they didn’t seem inclined to fight very hard against its existence, or its GOP majority.
For the Democrats, the highest priorities seemed to be (from highest to lowest) seating Brad Tabke, evenly dividing the other committees, and either preventing a Republican Speaker or weakening her.
I say that it must have been on the late night on January 13th because I can’t figure out how else to reconcile the timelines offered by the Minnesota Reformer and the MN DFL. The Minnesota Reformer describes a “final offer” where Speaker Demuth would hold “the title of Speaker,” but “would have shared power with Hortman.” This offer was made (per the Reformer) before the court ruled on Brad Tabke’s election challenge. That ruling was published at 5:35 AM on January 14th.
However, the MN DFL posted an offer dated January 13th which clearly does not offer Demuth the title of Speaker, but refers explicitly to a co-speakership. The accompanying letter from Rep. Hortman says that this offer was made “Monday evening” (the 13th), that it was “reiterated on Tuesday” (the 14th, after the Tabke ruling), and that it still stood as of January 16th (the following Sunday, a few days before the Minnesota Supreme Court ruled on the definition of a quorum).
Part of this discrepancy is surely explained by the fact that (as Rep. Hortman disclosed in her February 6 press conference), the “speaker-in-name-only” concession was made in secret. Hortman didn’t even notify her own caucus about that proposal, which was never her caucus’s official position.
What I figure is that the DFL made the official “co-speaker” offer in the evening on January 13th as the DFL letter says, then Hortman made the extra “title of speaker but not the power of speaker” concession later that night. When the GOP didn’t bite, Hortman withdrew the offer in the morning after the Tabke ruling strengthened their negotiating position.
Because this was a secret offer, it is very difficult to say what the exact terms of the offer were, and exactly what powers Speaker Demuth would have enjoyed under it. However, public comments on February 6 lead me to think the offer was severely constrained
Speaker Demuth (Speaker-Designate at the time) claimed on February 6 that everything shifted on Tuesday. Now, obviously, I’m not just taking Demuth’s word for it. She’s spinning wildly throughout this presser, just like her opposite number in the DFL. However, Demuth’s claim that the DFL made a sudden move on Tuesday matches up with the public chronology and with other information that has reached my ears.
Because we don’t know the details of Rep. Hortman’s secret offer to make Demuth Speaker-in-name-only (see two footnotes ago), it’s hard to say exactly how much better the final offer was. However, in the final deal, Speaker Demuth is definitely not Speaker-in-name-only. She has limited powers, but, in their February 6 press conferences, both parties seemed to agree that the final deal was better for the GOP than even Rep. Hortman’s secret offer late on January 13th.
Rep. Hortman claimed here (at 13:06) that negotiations began “in earnest” after the Minnesota Supreme Court’s ruling on quorum on January 24, but we can safely discard this as spin, since it contradicts not only the Republicans’ version of events, but Hortman’s own statements during the week-plus between January 24 and February 3.
As an experienced viewer of political bullshit, her entire answer here is carefully-worded bullshit. It was far from the only bullshit being flung at this press conference (both party leaders had plenty), but I’m calling it out because of its relevance to today’s post.
He argues that the Minnesota Supreme Court shouldn’t intervene, but offers zero authority supporting his usurpation of the House’s power and zero defense.
After all, winning the power to compel the attendance of absent members in a courtroom is not the same as actually exercising that power, much less exercising it effectively. The GOP would have stripped the quorum-busters’ salary, but what if the legislators in question had simply eaten the cost? What if Sec. Steve Simon, who had already shown himself to be a lawless, litigious scoundrel, continued to manufacture obstacles to the proper exercise of the House’s power?
Much of the balance of this article is my attempt to memorialize these arguments for the future, so that some intrepid lawyer doing research during our next legislative quorum-bust, 45 years from now or whatever, will find this article, learn everything we discovered during this case, and thus convince the future Minnesota Supreme Court to finally rule that, yes, in Minnesota, the “smaller number” does have the right to make motions and the power to compel the presence of absent members!
Wilson did, briefly, get into trouble during his rebuttal segment, after Mr. Farrell’s argument. Wilson made the (quite reasonable) claim that, because no House can bind a future House, the House could not pass a statute limiting (much less eliminating) its constitutional power to compel the attendance of absent members, but the justices seemed to understand him to be making a much larger claim. I think Wilson eventually straightened that out and escaped, with some help from Justice Thissen (who finally seemed to grok what he was saying), but it was the one rough patch in an otherwise silky-smooth day for the GOP advocates.
“Then you haven’t seen very many oral arguments, James!”
Yeah, probably. I closely follow probably just a couple SCOTUS orals per year, roughly, and only once watched a SCOMN oral argument prior to this year. ‘tis a fair cop.
A central quote from this part:
PROCACCINI: If there were 68 legislators, and the Secretary adjourned without allowing motions or the election of a Speaker, would your argument be the same? …Could the Secretary take all those same actions if there were a quorum, and could anybody oppose that action? …The argument gets you into a pretty tricky spot where you could imagine a rogue Secretary really abusing that power and not allowing formation of a House of Representatives even if you had a quorum.
FARRELL: …I think there generally is a presumption of good faith and regularity when it comes to government officers, so I don’t think you have to assume the rogue Secretary of State… I think you can assume a Secretary who’s acting in good faith [Ed. note: ya mean like Steve Simon?? rofl] so I think the situation is very very unlikely to ever arise…
Simon argued the question is not justiciable (because it was merely an internal rules dispute within the House) and that the plaintiffs did not have standing.
I thought these arguments could have some force when the GOP made them in the last case, just a couple weeks ago. However, the Supremes rejected those arguments. Instead, they reinforced existing precedent that the Minnesota judiciary—specifically the Supreme Court—does have jurisdiction to decide the legitimacy of actions in the House if the House hasn’t yet established its own rules for dispute-resolution. I thought this was a reasonable decision.
Whether or not it was correct, though, obviously, the justices were not about to overturn a precedent after just two weeks. An unconvincing attempt by Sec. Simon to either distinguish this case, or delay it by kicking it back to a district court, fell flat. It is worth noting that the only plausible reason for Simon to seek this delay in these circumstances was to run out the clock before the District 40B special election. In other words, it was a partisan maneuver, not something a supposedly disinterested Secretary of State would have done, no matter how much he insisted he’d been dragged into a partisan mudfight against his will.
This power was significantly amended in 2016 and now resides at Article IV, Section 9.
Indeed, Demuth and Niska had already launched a fairly persuasive pre-emptive strike on this backpedaling in their reply brief:
It is not clear whether Simon was previously aware of this statute. In any event, it would not be plausible for him now to abandon his “organization” argument and instead argue that this statute shows that the Framing generation believed that enabling legislation was required before a minority of legislators can compel the attendance of absent members. When the Constitution requires a power to be prescribed “by law,” it clearly says so. See Minn. Const. art. IV § 6 (“The legislature shall prescribe by law the manner for taking evidence in cases of contested seats in either house.”) (emphasis added); id. § 12 (“The legislature shall meet at the seat of government in regular session in each biennium at the times prescribed by law”) (emphasis added); id. § 15 (“Each house shall elect its presiding officer and other officers as may be provided by law”) (emphasis added). This 1858 law merely adds directory procedures to aid in the use of the Quorum Clause’s compel powers.
I’d only add that other contemporary state constitutions, like Pennsylvania’s, did specify that the power to compel had to be provided “by law.” This makes Minnesota’s omission of “by law” all the more significant.
UPDATE 14 February 2025 1:20 PM: I wrote directly to Farrell on Tuesday. He forwarded my email to the Attorney General’s press secretary—no doubt due to department policy about talking to “the press,” which, technically, I am. I received a reply from the Press Sec on Wednesday morning. I sent him my questions within about 30 minutes. I published very early Friday. Friday afternoon (a few minutes ago), I received this reply:
Hi James,
Because the case was quickly mooted—and because the AGO had limited time to research the 1858 law that was first cited in the reply brief—we have no further information to give. Generally, we recommend the excellent public servants at the State Law Library if you want assistance running this to ground.
Best,
Brian
I sent him back a thank you for his time and the correct citation. He’s right to suggest librarians. I did ask for help from the Legislative Reference Library on Wednesday night, and they concurred with my conclusion. Librarians are the best.
This doesn’t change anything, but, since I dinged them for not answering my emails, it only seemed fair to update when they did, in fact, answer my email.
Most of the activity surrounding the General Statutes of 1866 are omitted from the Session Laws of 1866. This appears to be by design, as the legislature explained in Chapter 121 of the General Statutes, Section 1: “This act shall not in any citation or enumeration of the statutes be reckoned as one of the acts of the present year.” The only references you will find to the General Statutes in the Session Laws of 1866 are in Chapters 13-17, all of which dealt with the printing and publication of the General Statutes, not their actual content.
I would like to review the House and Senate Journals of 1866 to confirm exactly how the General Statutes were enacted, but I haven’t found them online. Nevertheless, I am assured by the preface to the General Statutes that each chapter of the General Statutes was indeed “considered and examined chapter-by-chapter, and with such amendments as the committee deemed advisable to suggest, was presented to the legislature, which took up, considered, and enacted each chapter separately.” This means everything in the General Statutes of 1866 is indeed a duly enacted law, not merely a compilation of existing law. Chapter III, Title II, Section 13 of the General Statutes was therefore binding law, allowing the compulsion of absent members, even though the remainder of the 1858 statute was repealed by Chapter 122.
(Or, at least, most of it was. I honestly didn’t check every word, so it’s possible some other fragments of the 1858 statute were repurposed into the General Statutes.)
The 1905 Revised Laws were a rush job and, by their own admission, did not reflect Minnesota’s “complete code of laws” and are “not a new body of laws but a rearrangement and restatement” of previously existing laws, so I thought for a little while that the compel-absent-members provision may have survived even though it wasn’t included in that codification.
However, they were careful enough to include a repealer, Chapter 108. Although the compel-absent-members provision had been shoved around by various compilers over the years, it seems that, legally, it was still enacted as part of Chapter 3 of the General Statutes of 1866, so §5518 of the repealer wiped it off the books.
I admit I’m a tiny bit disappointed. When I started writing this section three days ago, I entertained a tiny hope that I would discover the compel-absent-members provision was actually still in force, which would have been hilarious.
I will have to settle for correcting the Minnesota Solicitor General’s office.
Wilson/Nelson/Diehl had two backup arguments:
Even if “it” doesn’t refer to the “smaller number” for some reason, it must then refer to the “House” (not to a “majority of each House”). True, the House is unable to transact ordinary legislative business, but, per MN Rev. Stat. 3.05, it is nevertheless organized as soon as its members have taken their oaths, and therefore can use this power. (This was one of the more daring arguments I suggested in the last article, in Footnote 10.) Simon simply assumed that the House was not yet organized and offered no rebuttal on this point.
Even if the House were not “organized,” it still exists. A legal session had begun, members had been sworn, and they were meeting every day, if only to adjourn to the next. If “the House” exists, it could still exercise this constitutional power, even with only a minority present, even if not yet organized. A case we will see later in the precedents, 35 Maine 563, will draw this very conclusion despite Maine’s different constitutional text.
These are both good enough arguments, but the justices seemed comfortable with the basic initial argument about the antecedent of “it,” so neither was fully explored at orals.
Pro tip: call a textual analysis “textualism” if you like it, “hypertextualism” if you don’t.
Obviously, as a web guy, I think this should be a crime, because hypertexualism is obviously a legal philosophy focused on analyzing the original public meaning of hyperlinks, but the legal academy has so far refused to accept my theories.
I’m pretty sure it was, and Montgomery v. Cleveland, 134 Miss. 132, a 1923 decision of the Mississippi Supreme Court, agrees that Hascall was Acting Governor when he issued the trick order.
Sec. Simon continued to insist through Thursday that he had no idea what was going on in the negotiations, but, since he has acted in open defiance of the law in lockstep with partisan DFL interests at every step of this standoff, I think we may be quite certain that the negotiators were getting regular reports from Simon on what was going on in his case.
We don’t even know what time of day the DFL starting making concessions. The reply brief wasn’t filed until late afternoon, so, if they started making concessions in the morning, that suggests a reduced role for the brief.
In the last case, I said that Nicholas Nelson, Ryan Wilson, and Samuel Diehl’s brief was “quite close to the blog post I would have written over the weekend, if I had had both the time and the brains for it.” I felt the same way about this one. Several arguments I considered a bit daring showed up in this brief, but cleaner and actually quite plausible. As I’ve already said, the textual argument alone would have probably won them the case even without the 1858 statute. Already linked several times, but their brief is worth a read.
I don't know if I should be saddened that there is a state legislative body that could be as dysfunctional as was the US House of Representatives in 2023 -- or relieved that this is not a unique problem.
lovely read! I was tickled throughout but really enjoyed Footnote #23