Legitimacy Crisis? In MY Minnesota Legislature?

It's more likely than you think!

Like my old Dashed-off Daily Dobbs upDates, I wrote this in a rush tonight and didn’t check for more than typos. It’s not as well-cited as it should be. I reserve the right to change my mind as I learn more. However, I know many De Civ readers really want to know what on Earth is going on in Saint Paul right now, and I am pretty confident this will still be better than anything you get from Fox 9 News. So here we go.

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Don't look now, but Minnesota just entered a gen-yoo-ine, certified, bone-a fide-y, constitutional crisis!

People abuse the phrase “constitutional crisis” all the time. It makes good copy. It sells newspapers. So every time two branches of government disagree about something, it’s a “constitutional crisis.” There was an article in The Atlantic a few weeks ago called “A Constitutional Crisis Greater Than Watergate”. The crisis? Donald Trump’s appointment of Kash Patel to head the FBI signals that Trump will try to (legally) use the FBI to advance his political goals. That may be right or wrong, good or bad, and it’s probably an argument against having an FBI at all, but it’s not a constitutional crisis.

For that matter, Watergate was not a constitutional crisis, either! Quite the opposite: the Constitution worked perfectly, better than anyone probably had a right to expect. The President broke the law, Congress investigated, the President stonewalled, the Supreme Court refereed the dispute and ruled Congress was right, the President duly released his tapes, Congress prepared to impeach, and the President resigned.¹ Beautiful! Just how the Founders wanted it!

What’s unfolding in Minnesota, though… this is a constitutional crisis.

What Happened Today

A body claiming to be the Minnesota House of Representatives, composed of 67 legitimately elected members of that House, spent today conducting what they allege was the Minnesota House’s organizing session. They met at the Minnesota Capitol, elected a speaker, appointed other officers, and passed rules, which will govern their deliberations going forward.

At the same time, 66² other legitimately elected members of the House absconded to Shakopee. They claimed that the House is currently not in session, and that today’s activities by the body-claiming-to-be-the-House are null and void. Rep. Melissa Hortman, leader of the dissidents, called it a “sham.” One of her backbenchers called it an “attempted coup.”

Both sides are operating under plausible but uncertain interpretations of the law. It’s not crazy to accept the legal theory under which the putative House is operating. It’s also not crazy to accept the absconders’ legal theory that there is not yet a House. However, now that there is a plausible House, that (putative) House will continue to take actions, which the absconders will not recognize, pulling the two groups into slightly parallel universes. Imagine a situation where the putative House passes legislation (say, a law requiring non-citizens to carry extra identification while driving), and the Senate (which is currently tied and is having no legitimacy problems) concurs, sending the legislation to the governor’s desk.

Our governor belongs to the same political party as the absconders, and, surprise surprise, he agrees with them that the House is not in session. This puts him in an odd position: if he vetoes this legislation, he will be recognizing the legitimacy of the putative House. However, the Minnesota Constitution says that if the governor doesn’t sign or veto a bill within three days, it becomes law. The governor refuses to take any action, on the theory that the bill was never properly presented to him, so he doesn’t have to veto it. Three days pass without a veto. The (putative) House and Senate declare that the bill is now law, but the governor refuses to recognize that law. Sheriffs from the (putative) House’s political party start enforcing the bill as law. Sheriffs from the governor’s party say the bill isn’t the law. Now you are living under two different legal systems, depending on what party your sheriff belongs to.

It’s hard to see a clear way out of this. The 66 absconders expect to add a 67th member in the coming weeks, and, when they do, they are likely to return to Saint Paul and attempt to form an uncontested House with the 67 already there. When they arrive, though, it’s by no means obvious how they will be able to reconcile the water that has already gone under the bridge. Will the absconders accept the elected speaker from the contested House, thereby admitting its legitimacy? Or will the remainers convene a fresh session and elect a new speaker, thereby admitting they acted illegitimately?

Forget the question of who’s right for the moment. At this point, after taking such strong stands, how could anyone back down? There doesn’t seem to be a face-saving way to climb down from this cliff-edge!

The courts are the best chance of resolving it. Indeed, every seat on the Minnesota Supreme Court is controlled by the same party. Any state supreme court under one party’s full control is very likely to step into political disputes like this, and very likely to support their party, whether the law does or not. (This is true of both parties.) There is also some precedent for courts providing an out in cases like this.³ On the other hand, the courts might not resolve it, because the Minnesota Constitution holds that “Each house may determine the rules of its proceedings.” If the courts step back, then what?

This is a minor crisis in a middle-tier state. It’s not even the first in our state. It won’t be the end of the nation. It’s very unlikely the putative House even successfully puts any legislation on the governor’s desk. (The Senate is tied and no senator is likely to break ranks to support the putative House’s claim to legitimacy.)

Nevertheless, as I’ve written before, this is the kind of thing that causes the ends of nations—gradually, then all at once—so it’s worth paying attention.

How We Got Here

It occurs to me that many of you blessed readers aren’t Minnesotans, and therefore haven’t been watching this crisis slowly come into blossom in the local news. Heck, the local news has been so sedate about it that I’m sure even many Minnesotans aren’t aware of what’s going on!

Alas, De Civitate has been caught unprepared. I have nothing prepared. I’m typing this at 10:23 P.M., hoping I can somehow pull an article together before my 2:30 A.M. bedtime. Because the newspapers were being so chill, I assumed this was mostly posturing, and I came to expect they’d unveil a deal at the eleventh hour, so there was no point pre-writing anything.⁴ I don’t know why I thought this. Hardball politics + partisan hatred + critical legal ambiguity = constitutional crisis. That’s my whole thing! It’s how I (sorta) predicted January 6, 2021 in August 2020! I just wasn’t paying close enough attention this time, so here’s the deal and let’s see how fast I can type:

On Election Night 2024, all 134 seats in the Minnesota House were up for election. When all the votes were counted, it appeared to be an exactly tied result: the GOP got 67 seats and the DFL⁵ also got 67 seats, although some of those races were still in litigation. Minnesota has no executive-branch tiebreaker vote, and nothing happens on a tie vote. (You need a majority.) When there’s a tie, then, the two parties can’t do anything unless they hammer out a deal, usually involving equal representation for both parties on committees, some kind of compromise on the speaker, and rules of order that allow both parties considerable freedom to move their legislation.

Making a deal was never going to be easy. The 2024 session of the Minnesota legislature was not exactly friendly. It ended in literally ten minutes or so of mass screaming on the floor as the Senate DFL, with a one-seat majority (which hinged on the seat of Sen. Nicole Mitchell, caught red-handed in a burglary last year), attempted to pass a large number of consequential bills with no support from Republicans and, in some cases, in apparent violation of the rules of order (no copies of the bill had been made available to members prior to the vote), before a midnight deadline. I’m not going to try to adjudicate that fiasco. I’m only mentioning it to explain why the parties were not in great shape to negotiate even before the crisis started, and to brag (?) that, for some reason, I watched all ten minutes of the incoherent shouting.

As the election litigation continued, though, two key races turned a difficult negotiation into a crisis:

The Carpetbagger

In House District 40B (Roseville/Shoreview), the defeated Republican candidate sued the victorious Democratic candidate, one Curtis Johnson. The Republicans argued that Johnson was not qualified to serve in the legislature, because he did not live in District 40B as the state constitution requires. (Article IV, Sec. 6)

I described this process (a “204B.44 petition”) in some detail last year, so I won’t go deep into it. In the end, the Minnesota Supreme Court ruled against Johnson, agreeing that he did not meet the district residency requirement. He was disqualified from taking office, and a new election would have to be held.

Governor Tim Walz (you might remember him from my discussion of Imperial Repeal a year ago⁶) scheduled a special election for January 28, the quickest he legally could… and maybe even quicker than he legally could. The MNGOP is currently in court arguing that the special election must be delayed.⁷

Whenever the election happens, the DFL is definitely going to win the seat. It’s like a D+20 district, Johnson won in November with nearly two-thirds of the vote, and the realignment of the past eight years has left Republicans performing horribly in special elections.⁸

However, even if the election went off without a hitch as early as January 28, and it were counted and certified as quickly as physically possible, that would still be too late for the House DFL.

See, the House’s 2025 session, by law, would have to begin today, Tuesday, January 14. (MN Stat. 3.011) With the District 40B seat vacant, the DFL would now have only 66 seats to the GOP’s 67. That would give the GOP a temporary majority at the start of the session. A majority—even a temporary majority—can pass rules and elect a permanent Speaker of the House. Of course, this cuts both ways: if the other side later gains a temporary majority, they can rewrite the rules and (I think) oust the speaker. Alas for the DFL, the House DFL has no prospects of gaining a majority. All they’re trying for is to get back to a tie so they can force that power-sharing deal.

In short, when the House went into session legally on January 14, before the disqualified Johnson could be replaced, it became clear to everyone that the DFL would permanently lose control of the House’s speaker and rules.

That was the end of the power-sharing negotiations.

The Guy Hanging on by a Fingernail

Meanwhile, over in District 54A (Shakopee/Valleyfair/Soak City), Brad Tabke won a very, very hot race by the skin of his teeth. Out of 21,980 votes cast, Tabke won by 14.

Unfortunately, Scott County soon discovered that it had misplaced 21 absentee ballots, which were not counted and (obviously) could not be recounted. Since Tabke’s lead was smaller than the margin of uncertainty, the GOP sued to have the result overturned and a new election held. A rerun election in 54A would be anything but a sure thing for either party. It was intensely fought in November, and, this time, a win for Republicans would give them clear, outright, permanent control of the House. People would show up for that. Also, there were 36 write-in votes in November, way more than the margin of uncertainty. Betcha most of them would pick a side in a new election.

Tabke fought back, though. Scott County was able to identify 20 of the 21 missing voters and the court was able to get twelve of them to testify. Six of them testified that their missing ballots had been cast for Tabke. If that’s true, Tabke has a 20-vote lead and there are only 15 missing votes left, so Tabke wins.

Judge Tracy L. Perzel (District Court, Scott County), in a ruling released literally this morning, decided the testimony of the missing voters was decisive. She dismissed the Republicans’ arguments, including arguments that other election irregularities justified a new election.⁹

However, Judge Perzel’s ruling is not final. Firstly, unless I’m misreading the statute, the Republicans can appeal to the state supreme court. Much more importantly, though, under the Minnesota Constitution (Art. IV, Sec. 6 again), “Each house shall be the judge of the election returns and eligibility of its own members.” The House, not the judiciary, decides whether Brad Tabke is one of its members. By law, the decision is made by majority vote… and Tabke himself is not allowed to participate (MN Stat. 209.10.5).

If the House GOP decided to challenge Tabke’s election on the floor, they would have 67 votes. The DFL would have, at most, 66 votes… or, more likely, 65, since the District 40B seat would probably still be vacant. Once Tabke was thrown out, a new election would be held in District 54A (likely a rematch of last November’s candidates). That election would decide whether the House reverted to a tie or shifted to outright GOP control.

Between these two crises in two Democratic seats, it seemed pretty clear for several weeks that the GOP was going to get at least temporary control of the House, which it would use to elect a Speaker and pass rules.

Then, in the past couple of days, the Democrats decided to strike back.

Boycott

Under the Minnesota Constitution (Art. IV, Sec. 13), the House may not conduct business in the absence of a quorum, and quorum is “a majority of [the] house”.

There are, ordinarily, 134 representatives, so a majority is 68 representatives. Ordinarily, they if you can’t get 68 people into the Capitol, the House cannot conduct business. So House Democrats, outraged by what they perceived as GOP scheming to bypass the tied outcome of last fall’s elections, cooked up a little scheme of their own: they would abscond. They would get themselves sworn in secretly by a sympathetic judge, but refuse to appear at the Capitol. The GOP would then have only 67 representatives, one short of a quorum, and would be unable to conduct any business.

Quorum-busting is deeply despised by both voters and constitution framers. It is a fundamentally anti-democratic strategy, and both the federal and state constitutions contain provisions expressly intended to prevent quorum-busting. In Minnesota, the quorum provision continues, “…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.” (emphasis added) Unfortunately, at both the state and federal levels, these provisions have proved impractical and rarely succeed, so quorum-busting continues to be practiced by both parties when under sufficient pressure.¹⁰

I am not sure what the DFL’s endgame here was (or is). They could hold out for weeks until Curtis Johnson’s replacement gets elected in 40B, which would bring them back to a 67-67 tie… but they will still be unable to protect Brad Tabke from Republicans, who would likely retaliate by booting him from office and returning to a 67-66 tie pending that other special election. Perhaps they hope public pressure will force the GOP to negotiate? Or will their boycott continue all the way until a special election has also been held to replace Tabke, which could be months from now? I don’t know. I don’t understand exactly how the DFL expects to win this. (It worries me that I don’t understand.)

However, regardless of the DFL’s endgame, there was a serious flaw in their plan: because Curtis Johnson’s seat has been declared vacant by the MN Supreme Court, there are not 134 House members. There are 133. A majority is therefore 67 members—which is exactly what the House GOP has.

Up ‘til now, it’s all just hardball politics. That is fine. Politics ain’t beanbag. Now, though, we come to the seeds of the crisis.

Quorum and Quorum! What is Quorum?

The Minnesota Constitution does not specify what exactly counts as a “majority of the House.” Is it a majority of members of the House, or is it a majority of seats in the House, including vacant seats?

If it’s members, then Curtis Johnson doesn’t count, 67 members makes a quorum, and the GOP has temporary control of the House. If it’s seats, then Curtis Johnson’s vacant seat does count, 68 members makes a quorum, and the House cannot conduct business without at least one Democrat present.

This question is hotly disputed.

According to the Minnesota Democrats, especially Minnesota Secretary of State Steve Simon, Mason’s Manual of Legislative Procedure, at §501, states in part that:

…the number of which such assembly may consist and not the number of which it does in fact exist, at the time in question, is the number of the assembly, and the number necessary to constitute a quorum is to be reckoned accordingly…

This supports Simon’s contention that seats should be counted, not members. A quorum is 68.

The reason I say “according to the Minnesota Democrats” is because I can’t find this passage in Mason’s Manual. It isn’t at §501 in my copy. Here’s what I find at §501 instead:

The total membership of a body is to be taken as the basis for computing a quorum, but, when there is a vacancy, unless a special provision is applicable, a quorum will consist of the majority of the members remaining qualified.

This supports exactly the opposite contention: vacant seats should not be counted. A quorum is 67.

I really looked for the phrase Sec. Simon is citing, but turned up nothing. Searching for the phrase “number of which” in my copy yields zero results, suggesting that this phrase appears nowhere in the entire book. Moreover, at least one former Minnesota House Republican on Twitter appears to be disputing the existence of the passage Simon cites.

There is a possible innocent explanation: my edition of Mason’s Manual is the 2010 edition freely available on the Internet Archive. There is a new 2020 edition that is not available online. (It is a terrible, terrible idea for governments to be run in part on documents not available to the public, but that’s another blog post.) I do not own a copy, and, quite frankly, while I’ve heard of Mason’s Manual, I’ve never actually used it before today.¹¹ Sec. State Steve Simon certainly knows the manual better than I do, and it does seem very unlikely that Sec. State Steve Simon would make up words out of whole cloth.

On the other hand, it also seems extremely weird that a very stable, sturdy handbook of legislative procedure like Mason’s would suddenly completely flip-flop on this issue in the space of ten years. Up until at least 2020, the text of §501 had been a constant in Mason’s Manual, completely unchanged, for more than 50 years. Moreover, the punctuation of Simon’s quotation makes me suspect that he has taken something in Mason’s out of context.

UPDATE 16 January 2025: De Civ’s wonderful readers spent the day tracking down this quote. It does indeed appear in Mason’s Manual, 2020 Edition, although it does not seem to mean quite what Sec. Simon wants it to mean. (Details here.) Now back to the original article:

To his argument, Simon adds that, according to Mason’s, the “majority of jurisdictions that have considered the issue,” agree with his position (count seats; quorum is 68). Of course, if this is true, it also means that a minority of jurisdictions have gone the other way (count members; quorum is 67), and their decisions are also worthy of respect.

Indeed, among that minority is no less than the U.S. Congress. As the Civil War began, a notorious Confederate sympathizer, Clement Vallandingham¹² attempted to deny a quorum because the Confederate states (which the Union still regarded as, legally, U.S. states) had refused to send Representatives and Senators to Washington (since they regarded themselves as, legally, a foreign government). The House ruled that only members duly chosen counted toward quorum, and that ruling stands to this day. (Hind’s Precedents, Vol. IV, §2885 et. seq.) If that ruling held in Minnesota’s legislature, the quorum would be 67.

Simon cited further authority and textual arguments in his first, 10 January letter to the Minnesota House GOP.

The Minnesota House GOP responded in a 13 January letter, arguing, among other things, that the Minnesota Constitutional Convention specifically rejected an alteration to the constitutional quorum requirement that would have endorsed Simon’s “count seats, not members,” position, with one delegate specifically arguing that it was a bad idea because the change would allow a minority to block a majority.

Sec. Simon replied again that same day, arguing, among other things, that legislative history can be easily misused or misread to mean the opposite of what it meant—a classic conservative textualist argument for sticking to the text.

Let us concede that this is a legitimately controversial question which admits no easy answer.

Personally, after reading Simon’s letters, I sincerely tend to think that, all things considered, the House Republicans have the better of this argument, and that we should count members, not seats, so a quorum is 67. However, I lack mastery of this subject matter. I haven’t read all the citations in these letters, and I am out of my depth when it comes to “usage and custom” in the Minnesota House.¹³ Moreover, as you all know, I lean toward the Right and hate the Minnesota DFL a lot, so my judgment is inherently suspect because partisan!

So let’s just concede that “how do you count the denominator for a quorum majority in Minnesota law?” is a question where reasonable people could sincerely disagree.

Straight Into the Iceberg

Sec. Simon’s opinion about all this matters considerably, because state law makes him the presiding officer at the opening of the legislative session. I’m going to quote MN Stat. 3.05 in full, because it matters a lot:

At noon of the day appointed for convening the legislature, the members shall meet in their respective chambers. The lieutenant governor shall call the senate to order and the secretary of state, the house of representatives. In the absence of either officer, the oldest member present shall act in the officer's place. The person so acting shall appoint, from the members present, a clerk pro tem, who shall call the legislative districts in the order of their numbers. As each is called, the persons claiming to be members from each shall present their certificates to be filed. All whose certificates are so presented shall then stand and be sworn.

Here is the video of what went down, blow by blow:

The crucial section is at 25:40:

SIMON: There being 67 members present, there is no quorum present as required by the Constitution of the State of Minnesota.

REP. HARRY NISKA (R-Ramsey): Mr. Secretary!

SIMON: The House may not conduct any further business and the House of—

NISKA: Mr. Secretary, I move to—

SIMON: —Representatives is adjourned. (gavel strikes; Simon walks off the rostrum)

NISKA: —appeal the ruling of no quorum under Mason’s 504 paragraph 5 and request a roll call. Mr. Secretary, the House is not adjourned. You do not have authority over the House of Representatives.

(Simon walks straight out of the room without looking back)

NISKA: Minnesota law requires the members of the House of Representatives to meet at noon on Tuesday in the House chamber. As you can see, the DFL Caucus has violated the law for the express purpose of preventing the House from organizing and beginning its work. The Secretary of State is not a member of the legislative branch has no constitutional authority over the House of Representatives. The constitutional authority to determine the rules of its proceedings and elect its presiding officer rests solely with the House, not with the Secretary of State.

I move the Secretary of State be removed pursuant to Minnesota Statutes 3.05, Minnesota Constitution Article IV, Section 15, and that Paul Anderson, as the oldest remaining member [as required by MN Stat. 3.05], take the rostrum.

Anderson took the rostrum, since the Secretary of State was indeed no longer present. Then:

NISKA: I move to find the prior adjournment out of order and request a roll call.

The motion was moved, seconded, and carried. Niska then renewed his appeal (which Simon had ignored) and, on appeal to the whole body, Simon’s ruling on the quorum (count seats; quorum 68) was overturned in favor of the GOP’s interpretation (count members; quorum 67). The body had 67 members, so, now recognizing itself as having a quorum to conduct business, the body carried on conducting business, elected a speaker, passed rules, and launched its first committee meeting.

From the moment Simon’s gavel dropped, this body was recognized by Republicans as the House of Representatives, but lost recognition from Democrats, who see it as a mob with no legal powers.

Gov. Walz quickly released a statement refusing recognition to the putative House, setting the state’s executive branch clearly against the majority of elected members of the state’s lower legislative house.

Meanwhile, this isn’t legally worth anything but it’s interesting: the House’s technical staff (the A/V techs and so forth) appeared to regard the putative House as legitimate. They continued recording, reporting committee meetings on legislative TV as official meetings of official committees, compiled a journal, and kept the Twitter up-to-date.

Crisis commenced!

The January 6th of January 14ths

I have conceded that the question Simon faced this morning was, legally speaking, a very thorny one. In a vacuum, it would be easy to sympathize with him. However, the broader context makes it hard for me to feel that way.

After all, the question only arose in the first place because Simon’s Democratic colleagues engaged in a coordinated, illegal, anti-constitutional effort to sabotage the legislative session. They did this because they had suffered (concededly) a sequence of very bad luck, especially in District 40B, which threatened to put them at a disadvantage for the next two years, which they felt would be unfair. They also felt that the GOP’s clear inclination to uphold the election challenge against Brad Tabke, putting the whole House back in play, was itself lawless and had to be stopped.¹⁴ Quorum-busting is a scumbag tactic, but I’m not going to pretend that there aren’t any circumstances where I would use it myself. The DFL decided to quorum-bust. Fine.

Yet the DFL’s quorum-bust wasn’t clearly supported by the law. In order to make this already-scumbag tactic work, they had to get the Secretary of State to use his temporary (historically ceremonial) post as convener of the House of Representatives to impose a substantive ruling on a very controversial matter in a way that would benefit his own partisan allies.

This is remarkably similar to the position Vice-President Mike Pence found himself in on January 6, 2021. Pence had been presented with a plan, the Eastman Memo, that would enable him to use his temporary (historically ceremonial) post as presiding officer of the Joint Session of Congress to impose a substantive ruling on a very controversial matter in a way that would benefit his own partisan allies. I see two key differences:

1. The Eastman Memo was based on some interesting legal reasoning but was, at its heart sophistry. By contrast, the Simon Memo’s core opinion on quorum determination seems to me be plausible, at least for now, as I am still learning the issues.

2. Mike Pence ultimately resisted the pressure to issue a ruling that enabled his party’s scumbag tactics. Steve Simon didn’t resist. He gave the green light to the scumbag tactics, on a ruling ambiguous enough that he clearly didn’t need to.

...of course, a large part of the incoming MN House GOP is still angry at Mike Pence because he did not go along with Trump that day, so they don't exactly have a moral right to complain when Steve Simon does what they wanted Mike Pence to do.

However, I was really dang mad about January 6, so I get the moral right to complain.

Meanwhile, even without a moral right to complain, the House GOP appears to have a legal right to object.

The Ruling is Not the Problem

As I’ve said, Sec. Simon’s initial ruling today was substantively defensible and legally followed proper form. It was everything after the ruling that seems to me to be legally wrong.

(It’s getting very late, so I’m going to rush this section.)

Ordinarily, when the presiding officer of a body issues a ruling about the rules, the body has a right, usually described in detail under those rules, to appeal the ruling. The appeal is put to a vote of the entire body, majority rules, and a precedent is set forever. This method is, frankly, a bad way to resolve legal disputes, because it’s so easily politicized, but there’s no alternative. In a democratic parliamentary body, majority rules. What else is there?

Today, Sec. Simon denied that the House had the right to appeal his ruling. He made an… interesting… argument for why this was the case:

Finally, in our meeting this morning, you asked whether I would entertain an appeal from the members present regarding my determination of a quorum. Minnesota law prohibits such an action. The Supreme Court has made clear that absent a quorum, all the members present can do is adjourn. See State ex rel. Palmer v. Perpich, 289 Minn. 149, 151, 182 N.W.2d 182, 183 (1971); Mason’s Legislative Manual, § 500 (requiring a quorum to transact business of any kind). Furthermore, if appeals of quorum rulings were permitted, they would render that requirement meaningless. A small group of members could enter the House, overrule the presiding officer, and purport to conduct business when clearly prohibited under law.

You should disregard Simon’s practical argument that appeals on quorum rulings would “render the requirement meaningless.” First, a small group of members could always be defeated by a large group of members; that’s how legislative sessions work. Second, practical concerns don’t change the actual written rules of the House. Third, the quorum requirement is already largely meaningless; every legislative body in the country routinely transacts business without a quorum and gets around the constitutional prohibition by pretending not to notice the absence of a quorum. So jettison the second half of Simon’s quote.

The key actual legal precedent Simon cites here is State ex rel. Palmer v Perpich, which dealt with a similar dispute in the 1970s. The state supreme court does indeed say the words:

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.

However, Simon grossly abuses the context. The court was talking about whether the legislature could conduct substantive business (specifically, an election challenge) in the acknowledged absence of a quorum. Answer: no, it can’t, duh.

The court wasn’t saying that the legislature is completely disabled from doing literally anything the instant a presiding officer says the words “no quorum.”

We know the court didn’t mean that, because the court lists two things the legislature can do in the absence of a quorum in the immediately preceding sentence. Here’s a bit more context (emphasis mine):

It takes a majority of the senate to constitute a quorum. Art. 4, § 3 of the Constitution provides:

"Each house shall be the judge of the election returns and eligibility of its own members; a majority of each shall constitute a quorum to transact business, but a smaller number may adjourn from day to day, and compel the attendance of absent members in such manner and under such penalties as it may provide."

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.

Prior to the opening of the legislative session in 1971, when the senate was called to order by respondent R. G. Perpich, the lieutenant governor, an election contest had been filed against Richard F. Palmer, one of the petitioners herein, who held a valid certificate of election….

At the absolute minimum, then, the Minnesota Supreme Court realizes, just as well as any literate being with a copy of our state Constitution, that a legislature is, in the acknowledged absence of a quorum, entitled to make motions to adjourn as well as make motions to compel the attendance of absent members.

Moreover, a House minority that lacks a quorum must be capable of establishing and acknowledging the absence of a quorum in the first place, or this provision can’t come into force at all. At minimum, then, a minority of the House is capable of adjudicating its own quorum under House rules. I am nothing like an expert in Minnesota House rules, but Sec. Simon’s argument that he—a member of the executive branch, not a legislator at all!—could make this ruling on behalf of the House with no say from the House stinks to high heaven.

Furthermore, there was never an established and acknowledged lack of quorum today. At the time Sec. Simon attempted to adjourn, there was only a ruling of the presiding officer pending acceptance by the House under its own procedures, which Simon was trying to short-circuit because Simon knew he would lose the vote. So he gaveled out and ran for the door.

Let’s talk about that gaveling-out. It seems to me that, unless I’ve missed something enormous, Sec. Simon’s purported adjournment of the House was clearly unlawful. It could not have had any legal effect, and the House (even if you think of it as a rump House) unquestionably remained in session after Simon’s attempted adjournment.

This is straightforward:

• The Minnesota Constitution gives authority to adjourn to the House, not to its presiding officer, and this is still expressly true even if there is no quorum.

• Mason’s Manual §210 is crystal clear: Where a roll call shows there is not a quorum present, it does not automatically adjourn the body.

• The motion to adjourn is a privileged motion, but still a motion, subject to an up or down vote by the body. (Mason’s Manual §200)

• It’s still a motion even if the body has less than a quorum (Mason’s Manual §208).

• The Minnesota Constitution explicitly contemplates that a body with less than a quorum may choose not to adjourn, in order to pass a motion to compel the attendance of absent members.

• Mason’s Manual §210 also contemplates that a body without a quorum may remain in session until a quorum is established, at which point business can resume.

Sec. Simon offered no motion to adjourn. There was no second. There was no vote. It wasn’t an adjournment!

Sec. Simon (a member of a different branch present to fulfill a mainly ceremonial function!) simply made a (legally speaking) controversial ruling, cancelled all debate on it with a second (legally speaking) very questionable ruling, then announced “The House of Representatives is adjourned” and walked out of the room—which is, legally speaking, bullshit.

This last part was the thing that pushed me off the fence. I was really trying to see both sides here. There really are two sides to some of these questions… but, from where I’m sitting, it looks like Sec. State Steve Simon knowingly abused his limited powers as a presiding officer in a deliberate attempt to sabotage a co-equal branch of government in service of his political party’s desire to illegitimately prevent Republicans from electing a speaker with their temporary majority.

This is not an insurrection or rebellion, because insurrections and rebellions are, in my view, violent by definition. There was no violence today, therefore no insurrection.

However, as someone who vigorously condemned January 6 and who did all in his power to see it punished, I didn’t just call January 6 every name under the sun; I looked up what all those names legally meant. So I am drawing on that experience when I say:

Based on what I know, I think it is fair to say that the Minnesota DFL is attempting a bloodless coup against the elected government of Minnesota.¹⁵

Let’s definitely keep doing this, both sides. Let’s keep playing chicken with our own government’s legitimacy and see where it gets us.

UPDATE 15 January 11:45 A.M.:

Two readers, Paloma and Mary E., diligently set out to find where Sec. Simon’s claim about Mason’s Manual §501 was coming from, since that text does not appear in any online version of Mason’s Manual. They appear to have found it—not in Mason’s Manual at all, but in Cushing’s Law Practice of Legislative Assemblies, 9th Edition (1874), on page 100. I’ve put the words Simon quoted in italics:

When the number, of which an assembly may consist, at any given time, is fixed by constitution, and an aliquot proportion of such assembly is required in order to constitute a quorum, the number of which such assembly may consist and not the number of which it does in fact consist, at the time in question, is the number of the assembly, and the number necessary to constitute a quorum is to be reckoned accordingly.

At a glance, this text appears to have appeared in all nine editions of Cushing’s (also known by the much cooler name Lex Parliamentaria Americana), dating back to his original 1856 original treatise. (The Internet Archive has the 1866 edition, and Paloma found the 1856 edition.)

I hasten to mention that just because this text appears here does not definitely mean that it doesn’t appear in Mason’s Manual, 2020 Edition. Mason’s may cite Cushing’s, at least as contrary authority.

However, there are some issues with this citation.

First, Mason’s Manual governs the Minnesota Legislature’s operations.¹⁶ Cushing’s does not. Mason’s Manual possibly mentioning Cushing’s in a footnote wouldn’t, either. (I’d still love a screenshot of §501 of Mason’s 2020 Edition.) If it comes from Cushing’s, Simon’s citation simply isn’t sound authority… especially against the weight of Mason’s actual §501, which supports the House GOP’s position. (UPDATE: See below, but somebody sent me a screenshot! Simon’s position is stronger than I make it out to be here.)

Second, look at the introductory clause, which Sec. Simon conveniently omitted in his letter to the House:

When the number, of which an assembly may consist, at any given time, is fixed by constitution, and an aliquot proportion of such assembly is required in order to constitute a quorum,

The number of the Minnesota House is not fixed by constitution. Per Article IV, Sec. 2 of our constitution:

The number of members who compose the Senate and House of Representatives shall be fixed by law.

The number is indeed fixed by MN Stat. 2.021, not by constitution. This axiom of Cushing’s isn't applicable to Minnesota… and Sec. Simon omitted it. Shenanigans.

Third, Cushing goes on immediately after to argue that even federal constitutional apportionment rules qualify as “fixing” the number of an assembly, and so the U.S. House (whose number is also fixed by law) should still count as having a number fixed by constitution:

…Thus, in the senate of the United States, to which by the constitution each State in the Union may elect two members, and which may consequently consist of two members from each State, the quorum is a majority of that number, whether the States have all exercised their constitutional right or not. So, in the second branch of congress, in which, by the constitution, the whole number of representatives of which the house may consist is fixed by the last apportionment, increased by the number of members to which newly admitted States may be entitled, the quorum is a majority of the whole number, including the number to which such new States may be entitled, whether they have elected members or not, and making no deductions on account of vacant districts.

This wouldn’t apply to the Minnesota House even if it did apply to the U.S. House, but, as it happens, it doesn’t apply to the U.S. House. Cushing wrote this in 1857, and apparently never updated it after the U.S. House directly overruled him on this point in 1861 (as discussed in the main body of this article).

This discovery considerably weakens both my belief that Sec. Simon’s legal position about how to count quorums is sound and my belief that Sec. Simon was acting in good faith when he articulated that position. The jury is still out, at least until somebody shows me a picture of §501 of Mason’s 2020 Edition, but this is a blow. (See below, but somebody did send me a screenshot, confirming that Simon’s quote was accurate and that he wasn’t the one who truncated it.)

Thanks again to

Paloma

and

Mary E.

for going hunting!

UPDATE 15 January 12:30 PM:

Oh, and, both Steve Simon and the MN House DFL have sued Speaker Demuth on writs of quo warranto. (I don’t have a link to Simon’s suit yet, but the House DFL cites the same passage of Cushing’s seemingly masquerading as a passage of Mason’s in their suit, at #60.) Obviously, I am fairly excited to see a high-stakes quo warranto play out in my backyard, despite its seeming bad faith.

UPDATE 16 January 1:45 AM:

John Phelan, an economist at the Center of the American Experiment, sent me a tweet with the screenshot of Mason’s Manual, 2020 Edition¹⁷ that I’ve been begging for! Thank you, John Phelan!¹⁸

So here is Mason’s Manual, 2020 Edition, Section 501. I am happy to say it dispels the suspicion that Sec. Simon made a serious citation error:

1. The total membership of a legislative body is to be taken as the basis for computing a quorum. The majority of legislative bodies follow the quorum rule stated by Cushing: “... the number of which such assembly may consist and not the number of which it does in fact consist, at the time in question, is the number of the assembly, and the number necessary to constitute a quorum is to be reckoned accordingly.” The minority rule is, when there is a vacancy, a quorum will consist of the majority of the members remaining qualified.

2. The number of members necessary to constitute a quorum is provided by the constitution. The presence of a certain number or proportion of members is required. In each but four states, the number to constitute a quorum is stated as a majority of the house or a majority of the membership or a majority of the members elected or a majority of the members to which the body is entitled. The body itself does not have the authority to require the presence of more than a majority to enable it to act unless that authority was specifically granted to it.

3. Compliance with a constitutional provision that fixes a quorum at a stated number of members is mandatory.

4. Those state legislatures whose constitutions do not establish the quorum requirement are empowered to establish their quorum by rule.¹⁹

Sec. Simon’s letter to the House Republicans, then, accurately quotes Mason’s Manual. This isn’t like that time we discovered the National Archives was spreading a misquotation of the Fourteenth Amendment all over the world. After consistently maintaining for over 50 years, without equivocation, that quorums count members rather than seats, Mason’s Manual really did change its position on that question in 2020.

This pushes my thinking back to where it was early last night: the quorum question is close. The main problems with Simon’s actions are still (it seems to me) his denial of an appeal and (especially) his unilateral adjournment.

On the other hand, Simon’s attempt to apply this passage of Mason’s to Minnesota still has two problems (both of which I’ve mentioned earlier in this article):

• Mason’s Manual is not quoting the first part of Cushing’s rule. As we discussed in the update earlier today, Cushing’s rule applies only to legislative bodies where the number of members is fixed by the constitution. It is entirely possible that the legislative bodies which follow Cushing’s rule (the majority) do fix their membership numbers in the constitution. However, Cushing’s rule doesn’t apply to Minnesota, where our membership number is set by statute. Minnesota’s membership number is set by MN Stat. 2.021, as required by MN Constitution Art. IV, Sec. 2. The fact that Mason’s itself is truncating the Cushing quote, not Sec. Simon, should make us think better of Steve Simon, but it doesn’t change the underlying problem that the Cushing rule Mason’s cites doesn’t apply to our state!

• The old Mason’s Manual (1957-2010) held unambiguously that you counted members, not seats. This was a clear rule which would (probably) be binding, if it still applied. By contrast, the new Mason’s Manual does not set a clear rule. It simply says that most legislatures follow Cushing’s rule and some follow Mason’s old rule. This is a menu of options, not a rule. Faced with ambiguous language and a legislative manual that expressly acknowledges both the ambiguity and two different legitimate ways to resolve it, who should resolve the ambiguity? The legislature itself, which “determines the rules of its proceedings”! I might be persuaded there’s a road to a court judging this, too. But not the Secretary of State, acting unilaterally, in his capacity as a ceremonial presiding officer.

On balance, then, I do still think that the GOP has the edge on the quorum question, but it remains close, and I haven’t read all the case law yet. The 2025 DFL coup attempt did not become a coup attempt because of their opinion on the quorum rules, but because of their anti-democratic behavior leading up to, and illegal behavior following, Sec. Simon’s ruling on 1/14.

1. If anything, you should be jealous of the Watergate Era for having such a well-functioning government. Nixon today wouldn’t resign, and Nixon’s party in Congress would never vote to convict anyway. Neither would the other party ever vote to convict their man. We have the Trump and Clinton presidencies to prove it.

2. Well… 65 or 66. Call it sixty-five-and-a-half. We’ll come back to that.

3. State ex rel. Palmer v. Perpich, 182 N.W.2d 182 (1971)

4. To be sure, I’m a terrible planner and have never actually pre-written anything. Occasionally, I tell myself I will, though, and then don’t. This time I skipped straight to “then don’t,” a serious error.

5. I remind you that Minnesota technically doesn’t have a “Democratic Party”. Our state Democratic Party apparatus is actually the result of a 1944 merger between the Democratic Party of Minnesota and the Farmer-Labor Party of Minnesota, which was growing powerful at the time. It became the Democratic-Farmer-Labor Party, or DFL.

Personally, I think the entire country should do this, because we Minnesotans have convenient three-letter acronyms for both major parties: GOP and DFL. The rest of you have to struggle with GOP and… “DEM”? It’s stupid. Ours is good. Rename the national Democratic Party!

6. oh and also he ran for Vice-President three months ago i guess so maybe you know him from there instead

7. I’m unfamiliar with the issues and won’t be weighing in on that case tonight, either. You should therefore assume both sides might be correct.

8. Very briefly: the most reliable voters, suburban college-educated whites, used to be Republicans but Trump turned them into Democrats. Meanwhile, the racially diverse coalition that put Trump over the top this fall depended on a lot of Black and especially Hispanic voters who do not reliably turn out at other elections. This is the exact opposite of 10-12 years ago, when Republicans struggled at presidential elections but absolutely whipped in special elections and midterms. I wrote a little bit about this in my Post-Election Impromptus, but there’s plenty of better writing about it out there from Nate Silver, Sean Trende, Harry Enten, Nate Cohn, and so forth.

9. Once again, I’m unfamiliar with the details and can’t do this whole case tonight, so you should assume that both sides might be correct.

10. In 1840, Illinois Rep. Abraham Lincoln famously leapt out of a first story window in a (failed) attempt to deny the Illinois legislature a quorum. (The doors to the Capitol had been locked to try to keep fleeing legislators inside.)

11. Like many people today, I know far more about federal politics than state politics, so I’ve been in Hind’s and Deschler’s but never Mason’s. Putting federal over state like that is a great political sin, and I’m ashamed to admit that I’m as bad as anyone.

12. He would be arrested in 1863, tried by military tribunal, and sentenced to be banished to the Confederacy for agitating against the Civil War. That’s a whole ‘nother chapter of constitutional law, though.

13. I must depend on statements by experienced members of the House, and they are pretty divided at the moment!

14. Remember, I don’t have enough familiarity with the facts of Tabke’s case to say whether the DFL or the GOP is correct, but you should probably treat both sides as acting sincerely in that close case.

15. …and, with control of the courts, they are likely to succeed! The MNGOP could ignore a court ruling, arguing that the court has no right to interfere in the affairs of a co-equal branch, but I don’t think they have much practical chance of pulling that off, with both the executive and judicial branches arrayed against them.

That won’t make it less of a coup, but it will mean that you’ll have to accept the illegitimate government, for the same reason that we have to accept an illegitimate federal executive branch.

16. To be sure, Mason’s is not the most important thing by far. As Rep. Melissa Hortman (D-Brooklyn Park/Coon Rapids and also current leader of the absconder caucus) pointed out in a decade-old clip, the order of precedence in the Minnesota House is: the Minnesota Constitution, the Minnesota statutes, the Minnesota House’s own custom and precedents, and finally Mason’s Manual. Still, the reason we are in this jam is because none of the other authorities provide clear guidance, so it still makes sense that everyone is going back to Mason’s!

17. He didn’t explicitly say, “This is a screenshot from Mason’s Manual, 2020 Edition,” but I was able to find a copy of the NCSL’s 2010 → 2020 changelog, which confirms that this is indeed from the 2020 Edition. (The tell is the added fourth paragraph.)

18. You can subscribe to him for free on Substack, where he writes about Minnesota economics. I liked this one!

Adjusted for inflation, government spending per person in Minnesota has risen by 23% since 2019

(N.B. It is only fair to plug a man’s Substack after he takes a difficult screenshot for you.)

19. Here is the screenshot

John’s Substack

sent me, from which the text above is transcribed.