Minnesota Senate Appointment Could Spur Legal Fight

Tina Smith Photo: Office of Governor Mark Dayton & Lt. Governor Tina Smith
Tina Smith

December 13, 2017 02:03 PM

The elevation of Minnesota's Republican state Senate president to lieutenant governor as part of a chain reaction after U.S. Sen. Al Franken's resignation will likely lead to a legal fight over whether she can hold two jobs.

Gov. Mark Dayton appointed Lt. Gov. Tina Smith on Wednesday to take Franken's seat when he steps down, which she indicated would likely be in early January. That choice quickly triggered major constitutional questions of how she'll be replaced and partisan bickering about the ramifications for the state Senate, where Republicans currently hold a one-seat majority.

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The constitution says the state Senate president ascends to the lieutenant governor's office. Senate President Michelle Fischbach said she expects to keep both jobs, a move that would help Republicans retain their edge in the chamber.

RELATED: Fischbach Expects to Retain Senate Seat Upon Becoming Lt. Governor

Fischbach said nonpartisan Senate attorney Thomas Bottern told her the state constitution allows her to hold both jobs for the remainder of Dayton's term, which ends in January 2019.

A letter Wednesday from Bottern cited Minnesota Supreme Court precedent from an 1898 case, as well as two examples of senators also serving as lieutenant governor, in the 1920s and 1930s. However, the last two lieutenant governors to ascend from the Senate resigned their seats first.

Bottern also warned Fischbach that her "seating as a senator" could be challenged, either through the courts or by her colleagues. And it likely would be by Minnesota Democrats, who argue the state constitution bans legislators from holding another office.

Dayton said asked Democratic Attorney General Lori Swanson for an official opinion because he doesn't think the Senate president can hold two jobs.

If Democrats prevail, it would mean Republicans lose their slim majority in the state Senate, at least temporarily.

Speaking to reporters Wednesday, Fischbach declined to address how she and Senate Republicans would handle a possible legal challenge.

RELATED: Dayton Selects Smith to Fill Franken's Senate Seat

She and Dayton scheduled a Friday lunch to discuss how they'd handle the unusual arrangement.

Fischbach is an eight-term senator from a deeply conservative district with a voting record to match. She was upbeat in accepting the new role but questioned whether she'd see eye to eye with a liberal governor.

Asked if she'd support Dayton's agenda, Fischbach deadpanned: "I seriously doubt it."

As Dayton weighed appointing Smith, he and Republican Senate Majority Leader Paul Gazelka explored options to avoid a messy succession, including resisting the automatic elevation and calling a special session to vote a Democratic senator into the presidency. The regular session doesn't begin until Feb. 20.

Dayton, 70, underwent prostate cancer surgery in March but said last week that he's cancer-free. He revealed his cancer diagnosis in January, a day after fainting while delivering his annual State of the State address. Doctors said the episode was likely related to dehydration, not the cancer. He's also had several hip and back surgeries that have left him with a limp.

RELATED: Response to Smith's Appointment to Senate Seat

Dayton joked about the possibility that a Republican could take over as governor, saying "I intend to be alive" through the end of his term. But he acknowledged it could happen.

"It's a valid concern. Anything could happen to anybody," Dayton said.

The Republican Party of Minnesota accused Dayton of using the appointment to undermine the GOP's Senate majority.

"It's an underhanded 'House of Cards' style move," party chair Jennifer Carnahan said in a statement. "This is clearly an attempt to throw the Republican majority in the Minnesota Senate out of balance. This decision will ripple through the next legislative session. This move is as transparent as it is political."

Fischbach, 52, has served in the Minnesota Senate since 1997. Her husband, Scott Fischbach, leads the state's largest anti-abortion group, Minnesota Citizens Concerned for Life.

Credits

The Associated Press

(Copyright 2017 by The Associated Press. All Rights Reserved.)

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