No special session over lieutenant governor swap

There won't be a special session of the Minnesota Legislature to change who becomes the new lieutenant governor next week, Senate leaders of both parties said Thursday.

A Republican push for a one-day session to prevent one of their own from ascending to lieutenant governor lacks buy-in from the state Senate's top Democrat, Minority Leader Tom Bakk. It's an issue because current Lt.  Gov. Tina Smith will leave to become a U.S. senator on Wednesday.

Under the state succession plan, Senate President Michelle Fischbach will slide into Smith's old role. Fischbach, of Paynesville, is a Republican in a narrowly divided Senate. She also wants to remain a senator, which could prompt a court challenge.

Republican Senate Majority Leader Paul Gazelka said he couldn't get Democrats to budge. Only DFL Gov. Mark Dayton can call a special session, and the governor has said he won't without a deal between Republican and Democratic leaders of the House and Senate.

"That's unfortunate because it easily could mean the Senate is in chaos depending on when and how everything goes down," Gazelka said.

He and Bakk have spoken by phone and traded text messages about Gazelka's desire to install a Democrat in the Senate president's job to give Dayton someone from his party in the No. 2 spot during his final year in office. Bakk confirmed that he told Gazelka he wasn't on board. Gazelka said he also spoke with Dayton on Thursday in an unsuccessful attempt to get a special session without an agreement among legislative leadership.

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The first test of Fischbach's dual role could come on Jan. 9, when she is set to co-chair a legislative hearing.

Gazelka and his allies point to an opinion from nonpartisan Senate counsel in arguing Fischbach can keep both jobs. They cite prior instances in Minnesota history and an 1898 Supreme Court ruling.

Democrats cite an advisory opinion from DFL Attorney General Lori Swanson's office that suggests a case could be made for requiring Fischbach to give up her Senate seat. They also contend that a constitutional amendment adopted by voters make clear that legislators can't hold more than one position in government.

Bakk said it's up to Fischbach to decide what course to take, but he warned that a lawsuit could be filed if she doesn't leave the Legislature.

"Any votes that she takes during the upcoming session could be invalidated by the courts if she is not constitutionally properly seated in the Senate," Bakk said. "It throws anything done during the session under tremendous risk of being undone by the courts."

If Fischbach does step down -- either willingly or under court order -- that could temporarily result in an evenly divided chamber. The Senate is currently split 34-32, with a special election for a seat last held by a DFLer set for February 12. A special election for Fischbach's seat likely wouldn't be scheduled prior to the Feb. 20 start of the 2018 session.