At the Minnesota Legislature, who’s undermining democracy?

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The Minnesota Legislature is in chaos. The start of the session was, by law, to begin at noon Tuesday. The representatives from the DFL Party boycotted the start of the session, however, because a state judge invalidated the election of one member of the DFL who did not live in his district. Had the DFL shown up Tuesday, the Republicans would have had a 67-66 majority while they await a special election to fill the vacant seat.

Not wanting to give Republicans a majority for even two weeks, during which time the Republicans might establish procedural rules for the legislative session, the DFL caucus tried to deny Republicans a quorum to conduct business. The secretary of state declared that no lawful quorum existed, and Gov. Tim Walz has similarly claimed that the House is not officially in session. Republicans have continued to carry on business nonetheless, electing a speaker, which has prompted many in the DFL to exclaim that Republicans are engaged in a “coup.”

In times of constitutional crisis, serious constitutional analysis is critical. Any reasonable interpretation of the Minnesota Constitution establishes that Republicans have a lawful, constitutional quorum. It is the Democrats, if anyone, who are engaged in a constitutional coup.

The Minnesota Constitution provides that a quorum shall be a majority “of each house.” The Constitution also states that “each house” is “compose[d]” of “members” who are “chosen” by election and who have certain “qualifications.” Each house also judges the qualifications of its members and makes rules of proceedings, among other constitutional powers and duties. A hypothetical future representative of a now-vacant seat is not a “member,” has no “qualifications,” has not been “chosen,” and can exercise none of the duties of “each house.” The Quorum Clause itself provides that a smaller number of members can “compel the attendance of absent members.” How does one compel the attendance of an unknown future representative to a now-vacant seat?

The conclusion is inescapable: “Each house” is the sum total of duly elected representatives, not the sum total of authorized seats that might in the future be filled with members who might be duly elected.

In the legislative history of Minnesota’s Constitutional Convention, the only member to speak expressly to the issue declared that the quorum requirement meant the majority of members sworn in. Interpreting a different provision of the Constitution that required “two-thirds of the house” to act, the Minnesota Supreme Court held in 1915 that the denominator was the “whole membership” of the body. The whole membership of the House is currently the 67 Republican members who were lawfully sworn in on Tuesday. Even if the membership includes all who were duly elected, the Republicans would still have a majority.

In fact, the U.S. Constitution uses identical language, and the House of Representatives has long observed the rule that vacancies are not to be considered for purposes of a quorum. As the Congressional Research Service has described the rule: “A quorum has long been defined as a majority of the whole number of the House, and the whole number of the House has long been viewed as the number of Members elected, sworn, and living. Whenever the death, resignation, disqualification, or expulsion of a Member results in a vacancy, the whole number of the House is adjusted.” The U.S. Senate first debated the issue when several states seceded and their representatives left the halls of Congress at the start of the Civil War. In 1864, the senators overwhelmingly determined that the best interpretation of the Constitution was that a quorum was a majority of duly chosen members, not of all authorized seats. That was sensible: What purpose would be served by counting seats that were not filled?

Another relevant authority is Mason’s Manual of Legislative Procedure, which governs the proceedings of the Minnesota Legislature if not contrary to other law or established custom and usage. The relevant provision states that “when there is a vacancy, a quorum will consist of the majority of the members remaining qualified.” In other words, 67 Republican members constitute a quorum. In a lawsuit just filed by the Minnesota DFL, the party quotes the 2020 edition of Mason’s manual, which states that accounting for vacancies is the rule in only a minority of states. Yet a look at the cases cited shows that Minnesota’s Constitution uses the language of the constitutions of those states. More still, the key support for the so-called “majority rule” is a treatise from the 1850s, which reflected the pre-Civil War assumptions. As noted above, when Congress conclusively debated the matter in the 1860s, both houses concluded that a quorum was to be determined out of duly chosen members.

Walz and the Democrats have, in short, effectively prorogued the Legislature, invoking one of the royal prerogative powers of King George III against which the American revolutionaries rebelled. For four years, Democrats have been accusing Republicans of attempting to thwart democracy. But who is the real threat?

Ilan Wurman is the Julius E. Davis Professor of Law at the University of Minnesota Law School. Benjamin Ayanian is a student at the University of Minnesota Law School.