Minnesota Supreme Court should not intervene in state House disputes

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Democrats are asking the Minnesota Supreme Court to settle the disputes they have with the Republicans regarding control of the state House. The court should refuse to decide, forcing the two parties to resolve this and disputes among themselves. This is their constitutional duty.

The Minnesota Constitution was written to enshrine and promote a functioning state government, including a Legislature. It provides language about matters such as how a bill becomes a law and quorums to do business. It describes the duties of legislators, and the size and composition of our House and Senate. It also provides for, as every student learns, three branches of government, each with their respective duties.

Generally, this means each branch is responsible for conducting its own internal affairs, subject to some outer constitutional limits. For nearly 168 years the Constitution served the state well, mostly because of the willingness of the parties and public officials to follow the rules and work together.

Now Minnesota is facing extraordinary and unprecedented challenges not seen since 1857 when the drafting of our Constitution split this state into rival Republican and Democratic Party conventions. Political polarization, winner-take-all and a take-no-prisoners approach to governing has pushed legislators to test the legal limits of their actions — not because they should but because they can.

We see now a variety of moves aimed simply at retaining or securing power. These include decisions to question quorum, refuse to show up for session, challenge the seating of duly elected legislators and defiance of court options. Neither the Democrat nor the Republican parties have the high moral ground here.

Both parties are now involving the Constitution and the law — as both a sword and shield — as cover or justifications for their power grabs. They are now turning to the Minnesota Supreme Court to resolve their disputes. This is not a surprise.

Nearly 200 years ago, Alexis de Tocqueville penned in “Democracy in America” that there “is hardly a political question in the United States which does not sooner or later turn into a judicial one.” He succinctly pointed to the idea that we are a litigious society, ready to go to court and sue at the drop of a hat.

And over time we have gone to court, often to solve political disputes. While in some cases, such as in the case of gerrymandering, it makes sense for the judiciary to step in to promote fair representation, in others, such as with Bush v. Gore, the U.S. Supreme Court was criticized for issuing an opinion that decided the presidency.

The courts, including the Minnesota Supreme Court, should not intervene in every dispute. The courts, at both the federal and state level, have crafted a variety of cases or issues deemed political over which it has no jurisdiction or authority to act. These are issues over which the courts, again both national and state, have said should be best left to the other branches to resolve. These include matters of what constitutes a republican form of government and historically the internal matters of organization in the other branches of government. Legal scholar Alexander Bickel declared the decision not to intervene exercising its “passive virtues.”

In the disputes now between the Democrats and Republicans fighting over control of the House, the Minnesota Supreme Court should decide not to decide. While in the short term it might be expedient for the court to resolve the legal issues here, it sets a horrible precedent. It sets precedent for the court to intervene in future disputes in the Legislature. If today it is about quorum, tomorrow about committee structures or the selection of officers.

Additionally, were the court to intervene it would take the legislators off the hook to be responsible to themselves and the voters for their own behavior. Instead of working it out themselves, they would go to court to resolve their disputes. Letting the court resolve the disputes now only weakens the Legislature, while giving the court undue influence over the legislative process.

Left to their own, the House Democrats and Republicans will be forced to find a solution. Failure to do so could mean a government shutdown and punishment at the next election for their bad behavior. We elected them to do their job, not the Minnesota Supreme Court. This is what our state constitutional framers intended.

David Schultz is Hamline University Distinguished Professor and Winston Folkers Endowed Distinguished Faculty Chair of Political Science.