The Coming Republican State of Minnesota?

Minnesota Congressman Rick Nolan’s surprise decision not to seek re-election underscores how his state is at a political tipping point.  This most Democratic of states in 2018 could finally turn
Republican, following the path of Wisconsin and other Midwestern states.  What happens in Minnesota this year could also decide which party controls the US House and Senate, making the state ground zero in this year’s elections.
Minnesota is thought of as the liberal state of Hubert Humphrey, Eugene McCarthy, Walter Mondale, Paul Wellstone, and Al Franken.  It is the most reliable Democrat state when it comes to the presidency; the last time it voted Republican was for Nixon in1972.  Tim Pawlenty in 2006 was the last Republican to win a statewide election in Minnesota.
Yet there are many signs that the state is turning Republican.  Since 1999, the Minnesota House of Representatives has been controlled by Republicans fourteen out of twenty years.  Since 2010 party control of the State Senate has flipped three times.  Since 1999 a Democrat has controlled the governorship only eight years out of twenty.  When Democrat Mark Dayton won the governorship in 2010 he was the first of his party to win that office in Minnesota since 1986.
In 2016 Hillary Clinton beat Donald Trump by 45,000 votes–the closest presidential race in the state since 1984 favorite son Walter Mondale barely eked out a victory over Ronald Reagan. That year Minnesota was the only state in country to vote Democratic.  Her close victory should not have been a surprise–exit polls put Minnesota at 37% to 35% in terms of Democratic/Republican affiliation, similar to the 36% to 33% split nationally.
From 2008 through the 2012 and then into the 2016 presidential elections, the actual number of votes and the percentage of votes received by the Democratic candidate declined.  In 2008 Barack Obama received 1,573,454 votes compared to John McCain’s 1,275,409–a difference of 298,045.  In 2012 the gap between Barack Obama and Mitt Romney narrowed to 225,942.  Then in 2016 it was 44,765 between Hillary Clinton and Donald Trump – a steady narrowing of the gap between the Democratic and Republican candidate.   In 2008, of the 87 counties in Minnesota, Obama won 42 of them.  In 2012 Obama won 28, and in 2016 Clinton only won nine counties.  In comparison, in the 2014 gubernatorial election, the Democrat Mark Dayton won 34 counties.
As with nationally, the Democrat’s base appears to be eroding, contracting to simply urban areas.  The reasons are multifaceted. There is the Democratic appeal to educated urban liberals, often more affluent who look down on or disdain as stupid their rural and suburban counterparts, or those who are working class because they do not share their same interests or lifestyle preferences. There is also the failure of both parties to pay attention to the class and economic concerns of white-working class America.  They abandoned  class for identity politics.   Democrats seem also to have a one-size fits all campaign strategy that works well with urban populations but which is not tailored to the suburbs and rural areas.  Democrats have also embraced a “demographics with destiny” argument that often assumes that history in on their side and that eventually voters will return to their senses and vote for them.  Finally, Republicans  have well exploited the economic and cultural fears of rural, suburban, working class America, offering a narrative resonates with those who feel ignored.  All this is true nationally, and is being played out too in Minnesota.
Minnesota may be ground zero for national politics this year.  There is an open race for governor and two US senators up for election.  While Amy Klobuchar is favored to win, Tina Smith–who replaced Al Franken after he resigned–faces a tough election and is no shoo-in.  Nationally there are only about 25 swing House seats in the country, but four of them are in Minnesota.  Two of them–Minnesota’s First and Eighth–are currently held by Democrats Tim Waltz and Rick Nolan and neither are running for re-election.  These are open seats that have flipped party control over the years and are leaning Republican; both went for Trump in 2016.  There are two other House seats, the second and third, respectively held by Jason Lewis and Erik Paulsen, that are rated competitive by the Cook Report as competitive, but still leaning Republican.  The fate of the partisan control of Congress might rest with who wins Senate and House races in Minnesota.
Finally, at the start of the year the Minnesota State Senate were respectively 34-33 and 77-57 Republican.  A court fight over whether a Republican state senator must give up her seat when she became Lieutenant Governor to replace Tina Smith (who held that job) may decide in the next few weeks partisan control of it.  Short of a wave election Republicans will maintain state house control.  If Republicans can win the open gubernatorial seat this November, they would perfect their control of Minnesota much like what happened in Wisconsin when Scott Walker won. Such a prospect would then set up all the conditions for major policy change in Minnesota, along with a real possibility that in 2020 it would finally flip Republican in the presidential election.

January 3, 2018–A Day of Constitutional Infamy in Minnesota Politics

January 3, 2018 might turn out to be one of the most important days in recent Minnesota history, both in terms of politics and constitutional law.  For it is on that date that Tina Smith takes over for Al Franken as US Senator, potentially triggering a major constitutional battle, and Rebecca Otto has oral arguments before the Minnesota Supreme Court in a case that will decide the power of the State Auditor.  These two events are part of a broader political battle in Minnesota politics that now engulfs the state constitution.
Minnesota is no longer your grandfather’s state where the Democratic Farmer Labor Party ruled.  While Minnesota remains the most loyal of Democratic states in terms of presidential politics by not having gone for a Republican since 1972 with Richard Nixon, it is otherwise a state that is partisanly divided.  Republicans control the legislature; the congressional delegation is split by parties, and Donald Trump nearly beat Hillary Clinton in 2016, coming within 50,000 votes of flipping the state.  Clinton won only nine counties in 2016, Dayton as governor won only 37 of the 87 counties in 2014, and in general the political geography points to a state hotly divided between  Hennepin, Ramsey, Olmsted, and St. Louis counties and the rest of the state.  Democrats have lost the farmers, and the dwindling density of the percentage of the state collectively bargaining means that it too may soon lose what is left of labor.
The partisan divide ha produced a polarization that has wrecked havoc on Minnesota.  It has included government shutdowns and repeated special legislative sessions that are no long special but the new normal.  But the intensity of the political divide has over the last decade, and especially in the last two years, taken the state to the level of constitutional fights.  When the Minnesota Constitution was significantly overhauled in 1972 it provisions were the product of the political consensus of the times, reflecting shared understandings about how the state and it various entities should work.  That shared consensus and understanding is gone, and with it the glue that held together state politics and the constitution.
Perhaps the first case in this new era of constitutional politics  was Brayton v. Pawlenty, 781 N.W.2d 357 (Minn. 2010), challenging the authority of the governor to use his unallotment powers to balance the budget when he simply disagreed with what the DFL Legislature wanted to do.  Then there were the 2011 Ramsey County Court decisions In re Temporary Funding of Core Functions in the Executive Branch of Minnesota and  In re Temporary Funding of Core Functions in the Judicial Branch of Minnesota that allowed for the funding of the state government even though there governor and the legislature had not agreed on a budget.  In 2012 the Republican Legislature was unsuccessful in its attempt to bypass the governor and amend the Constitution to change the law regarding voting and same-sex marriage. And last year the State Supreme Court failed to resolve the constitutionality of the governor’s use of the line-item veto to eliminate funding for the state legislature in response to their passage of budget bills he did not like.   While the Court did not officially rule in favor of Dayton in Ninetieth Minnesota State Senate v. Dayton, 903 N.W.2d 609 (Minn. 2017), it effectively acquiesced this use of the line-item veto because the legislature was not without resources to act.
All this brings us to January 3, 2018.  Most notably the date will be known as the one where Senator Al Franken was replaced as US Senator by Lieutenant-Governor Tina Smith who was nominated to that post by Governor Dayton.   This leaves a vacancy in the Lieutenant-Governor’s position and according to Article V, Section 5, of the Minnesota Constitution: “The last elected presiding officer of the senate shall become lieutenant governor in case a vacancy occurs in that office.”  That would make it Senator Michele L. Fischbach (GOP)  who would become Lieutenant-Governor, creating a vacancy in her position and necessitating a special election for her senate seat under Article IV, Section 4, of the Constitution.   Except that Fischbach does not want to give up her Senate seat and she and Republicans are trotting out a Minnesota Supreme Court decision State ex rel. Marr v. Stearns, 72 Minn. 200 (1898) as precedent to allow her to retain both her senate and lieutenant-governor seats.  There are lots of good reasons to think that precedent is bad law,  including the fact that some of the constitutional provisions at play in that decision were repealed  by amendment in 1972.
But the validity of the precedent is immaterial, as is who really fills the lieutenant-governor vacancy.  The case is about politics.  Democrats hope that forcing Fischbach out might shift the balance of power in the Minnesota Senate slightly, which was controlled 34-33 by the Republicans after the  2016 elections and which now is 34-32, pending a special election to replace a DFLer who had to resign.  Assume Democrats win the seat, forcing Fischbach out shifts the Senate to 33-33.  Once Fischbach becomes Lieutenant-governor, look to see a lawsuit filed to challenge her ability to hold both positions.  With a Dayton-appointed majority on the Minnesota Supreme Court, she will lose.  But the timing of the litigation, when a decision is issued, and when a special election occurs may all impact the Senate balance of power.  And at the end of the day, forcing Fischbach and Republicans to spend money to litigate and run for her seat again (Fischbach has said if she is forced out of her Senate seat she will run for her Senate seat again in a special election and if she wins will then resign as Lieutenant-governor) is worth it to some DFLers.
The other major January 3, 2018 event is Otto v. Wright County.  Here oral arguments will be heard challenging the authority of the State Legislature to take some audit authority from the State  Auditor by allowing counties to hire their own private auditors.  The case raises important constitutional law questions about separation of powers (may the legislature remove some powers from a constitutional office without undermining its core functions) and perhaps the single-subject rule (since the provision that authorized this was snuck into a larger bill with a variety of assorted and arguably unrelated provisions).  Otto v. Wright County has looming and important constitutional questions that will affect the state, but this case too was rooted in petty partisan and possibly intra-party fights that were meant to damage Rebecca Otto’s political ambitions.
Look for more constitutional battles in 2018 and beyond.  These battles will take the form of litigation and constitutional amendment.  These battles are the product of a political consensus that has broken down, challenging the norms and shared understandings that held state politics together for the last 50 years.

Tina Smith, Michelle Fischbach, and Minnesota Constitutional Politics

The selection of Tina Smith by Governor Mark Dayton to replace Al Franken as US Senator is degenerating  into a political fight that ultimately may require the Minnesota Supreme Court to decide whether Senator Michele Fischbach gets to keep her seat in the Senate.
Here is the issue.  Al Franken’s resignation from the US Senate, triggering Minnesota Statutes  §204D.28, allowing Governor Dayton (DFL) to replace Franken.   Dayton picked his Lieutenant-Governor to replace Franken, thereby creating a vacancy in that office.  According to Article V, Section 5, of the Minnesota Constitution: “The last elected presiding officer of the senate shall become lieutenant governor in case a vacancy occurs in that office.”  That would make it Senator Michelle L. Fischbach (GOP)  who would become Lieutenant-Governor, creating a vacancy in her position and necessitating a special election for her senate seat under Article IV, Section 4, of the Constitution. 
Except, does Fischbach have to vacate her Senate seat?  Democrats argue yes, pointing to two clauses in the State Constitution.  The first is Article III, Section 1 stating that:

The powers of government shall be divided into three distinct departments: legislative, executive and judicial. No person or persons belonging to or constituting one of these departments shall exercise any of the powers properly belonging to either of the others except in the instances expressly provided in this constitution.

The second is Article IV, Section 5, declaring that:

No senator or representative shall hold any other office under the authority of the United States or the state of Minnesota, except that of postmaster or of notary public. If elected or appointed to another office, a legislator may resign from the legislature by tendering his resignation to the governor.

Taking a plain language reading of the Minnesota Constitution, DFLers contend that Fischbach  must  assume the position of Lieutenant-Governor and vacate her position as state senator.  It seems open and shut, except Republicans say it is not.  They contend first that the reason Dayton picked Smith was to force a Republican vacancy in the Senate, hoping in a special election to flip the 34-33 GOP majority into DFL control.  Republicans are conjuring up images of DFL political chicanery in hopes of repeating the Minnesota Massacre sweep of the 1978 two US Senate, governorship, and legislative races again in 2018. 
But Republicans also claim law is on their side, citing to the Minnesota Supreme Court’s State ex rel. Marr v. Stearns, 72 Minn. 200 (1898).  In that case the legal issue was a challenge to a decision by an Aitkin County auditor to tax three railroad-owned properties, pursuant to a state law.  In challenging their taxation, one argument was that the state senate did not adopt the legislation by the required majority vote as required by the State Constitution.  Specifically, Honorable Frank A. Day, who voted for the bill, and whose vote was necessary to pass it, was not then a senator, and his vote thereon was void.
  According to the Court, Day was elected as a senator from the Sixth senatorial district of this state for the term of four years, commencing January, 1895, and on January 25, 1895, became president pro tempore of the senate. Six days thereafter, Gov. Nelson resigned, and Lieut. Gov. Clough became governor; and thereafter, and until the close of the Twenty–Ninth session of the senate, Mr. Day performed the duties of, and acted as, lieutenant governor. He also, until the close of the session, continued to act and vote as senator, with the tacit approval, at least, of the Senate.
In rejecting the claim that he had left the Senate and became Lieutenant-Governor the Court rejected arguments that either Article III, Section 1 or Article IV, Section 5 forced Day out of the Senate.  The Court argued that in interpreting all of the state constitutional provisions as a whole, there was no explicit or clear language that said the senator must resign.  Additionally, the Court also noted how Article VIII which discusses impeachment excludes the lieutenant-governor from being impeached as an officer, suggesting that this person remains a senator.  Finally, the Court noted that the impeachment clause specifically excluded the Lieutenant-governor from serving or voting when the governor is impeached.  Providing for this specific exclusion is proof for the State ex rel. Marr v. Stearns that the Constitution, taken as a whole, means that the presiding officer of the senate of vacates that seat when becoming lieutenant-governor.
State ex rel. Marr v. Stearns is an interesting precedent, but is not convincing.  First, the Court’s real holding in the case was about taxation and not on the matter of whether the president pro tempore of the senate loses his senate seat when becoming Lieutenant-governor.  The latter issue was collateral to main issue.  Second, in the nineteenth century Minnesota and other states court applied the “enrolled bill” doctrine, a presumption that the judiciary would not second guess how the legislature did its business or count its votes.  That doctrine is mostly dead now.  Third, the decision in State ex rel. Marr v. Stearns was overturned by the US Supreme Court in Stearns v. State of Minnesota, 179 U.S. 223 (1900).  While the US Supreme Court cannot overturn the Minnesota Supreme Court’s own interpretation of our Constitution, the former’s decision clearly erodes the authority of State ex rel. Marr v. Stearns as precedent.
But the strongest reason to why State ex rel. Marr v. Stearns is not good law is that the Minnesota Constitution has been significantly amended since that decision.  For example, back in the original Constitution (Article V, Section 6), the Lieutenant-Governor was named ex-officio president of the senate.  This is no longer the case as a result of constitutional amendment.    Back in State ex rel. Marr v. Stearns one could argue that the specific language of the Constitution blended the Lieutenant-Governor into a position that stood as an exception to Article III, Section 1 or Article IV, Section 5.  That is no longer the rule or the case today.  Yes the current Constitution fails to subject the Lieutenant-Governor to impeachment, but that is an oversight in the amending process.
Thus, the current constitutional basis for the Court’s decision in State ex rel. Marr v. Stearns is questionable on many fronts.  If the GOP were to bring their case to the Minnesota Supreme Court there are many reasons to doubt the validity of this old decision.  Finally, given that a majority of the Minnesota Supreme Court is now Dayton appointees, and given how they ruled in the line-item veto case, the prospects of the Republicans winning and allowing Fischbach to stay in the Senate are bleak.

A Tale of Two Senate Seats: What We Learned from Alabama and Minnesota

Doug Jones defeats Roy Moore in Alabama and Mark Dayton picks his Lieutenant Governor Tina Smith to replace Al Franken in Minnesota.  What should we infer or conclude from both?  Far less than the national and local media and most pundits will assert.

Alabama
On one level Roy Moore’s loss is about one seat in one state.  It is about a twice-removed state Supreme Court Justice accused of child molestation, repudiated by much of the Republican
establishment including Richard Shelby, losing to a moderate Democrat in a close special election.  The Democratic Party and then media will proclaim this is a repudiation of Donald Trump and Steve Bannon, and that it is a referendum on both that portends well for the Democrats in 2018.  Don’t bet on it.  Every time there is a special election everyone wants to generalize or argue that it has broader significance.  Remember at the end of the day Tip O’Neill was right–“all politics is local.”
In so many ways the Jones-Moore race was atypical.  There are not too many times Democrats are going to run in 2018 against an accused child molester with crank views about religion and the Bill of Rights.  Given all his liabilities, the race should have been a blow out.  It took such a horrible candidate repudiated by his own state Republican Party for a Democrat to win barely.  Take little solace in that. 
Next year there will be 35 senate races when Democrats having to defend  25 seats and the GOP nine.  Democrats will need to hold all their seats and win two Republican ones to control the seat.  They also need a perfect storm to win back a gerrymandered controlled House and to make significant inroads into recapturing the governorships and state legislatures lost over the last few years.  Yes opinion polls favor generic Democrats for Congress, Trump’s approvals are low, and the opposition party to the president in off-year elections historically does badly.  But Democrats often  do not show up in midterm elections and as of yet the Democratic Party has not constructed an alternative narrative to Trump’s to why they should be elected.  In defeating Moore their rationale for winning is that he is a creep.  Hardly a winning message for 2018 even against Trump.
Potentially what is significant is that the Democrats did crack the solid Republican South and elected their first Alabama senator in 25 years.  Maybe–just maybe–Jones offers the type of candidate that Democrats can win in the South.  Maybe we saw with Black turnout what the Voting Rights Act can really do.  Maybe the South, especially the urban areas and the changing demographics, suggest  changes that a longer term and more structural.  But determining all that is too soon to tell and Democrats should not get their hopes up too soon.  Demographics are not destiny, and local races against bad candidates cannot be exemplars for other local races across the country.

Minnesota
After a week of drama Dayton selects Tina Smith to replace Al Franken.  Dayton could have done something bold and build for the future of the Democratic Party in Minnesota but he opted for predictability and loyalty in selecting Smith.  This is who he was rumored to want a week ago,
perhaps or not turning his back on pressures from various constituencies both local and national to  select someone else.
But besides picking Smith out of predictability and loyalty, perhaps he also selected her for another value–competence.  Rarely do we discuss competence as a trait among candidates for office, but in Smith we get someone who is a real public policy person.  She is less about politics, campaigns, and elections, and more about tax policy, governance, and legislation.  She is all that Hillary Clinton was without the baggage.  Whether in a Trump era competence is the type of trait that is electable in 2018 is a matter of speculation and one will see if she faces challenges from within the DFL.  But even if she does not, her 2018 special election will attract millions of dollars and outside national interest.  It would be nice if she could simply run on being competent and smart but too few candidates–and especially women–can do that.  Our pop culture dislikes intellectualism–historian Richard Hofstadter told us that years ago–and smart women are threatening to many.  Smith in running for reelection will need to figure out how to run without making the mistakes Clinton made, simply being competent and smart it not enough, and she will also need to provide a narrative why she deserves to fill out the remaining two years of Franken’s term.
Finally, she needs to address a growing parochialism setting in among many Minnesotans and especially DFLers.  There is a growing resentment that Chuck Schumer told Minnesotans that Franken had to go and therefore they were telling the state who our senator should be.  There is some truth to that, but in the end, Franken had to go.  Six to eight allegations of sexual impropriety, collapsing poll numbers for his support in the state, his inability even in his resignation speech to appreciate what he might have done all suggest that Franken had lost the ability to legislate.  We should worry about how “accusation equals guilt” is creating a new Salem witch hunt, and yes what he was accused of doing is different from that of what brought Roy Moore down. 
But character does matter and Franken’s brought him down, for good or for bad.  The issue is not a lack of due process, the issue was his inability to provide a reasonable accuse or account for his behavior. The court of public opinion is not a real court. For those who said he deserved his day in court (or before the Senate Ethics Committee), the same could have been said about Roy Moore.  Insisting on full due process for Franken would have required the same for Moore and everyone else  charged with anything else on the campaign trail. 
         Good or bad, in a representative democracy voters and public opinion rule.  Elected officials compete in the marketplace of ideas for vote and it should not usually if at all be that courts and trials decide the truth or veracity of claims.  Maybe that is the lesson that should be generalized from Minnesota and perhaps Alabama.