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Minnesota Supreme Court justices on Wednesday promised to decide quickly whether a special election critical to deciding power in the House happens as scheduled on Jan. 28 or gets pushed deeper into the legislative session.

The timing matters because Republicans currently hold a 67-66 edge in the chamber over Democrats. The difference between a majority and a possible 67-67 tie could shape the rest of the session. 

Democrat Curtis Johnson won a Roseville-area seat in November but was 

disqualified by a judge over residency questions

 and declined to appeal. Walz ordered the Jan. 28 election but Republicans sued, arguing Walz didn’t follow the law in setting the date. Voting in the House 40B District is already underway.

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Justices on Wednesday listened to more than an hour of oral arguments and questioned whether voters would be confused, election officials inconvenienced and the district’s residents left without representation if the election was postponed. 

They also asked if Walz acted too hastily to call the special election and whether the seat was actually vacant before the election was scheduled.

“Is abandonment a criteria under the statute that creates a vacancy in an office?” Justice Paul Thissen, a former House speaker and DFL leader, asked attorneys representing Walz. 

“I don’t see any reason why the word incumbent can’t be read recognizing the future effect that Curtis Johnson was in the future tense, going to be an incumbent,” Assistant Attorney General Nathan Hartshorn responded. 

The Minnesota Republican Party, along with the conservative Minnesota Voters Alliance, filed the lawsuit. They contended the seat wasn’t vacant because Johnson never took that seat. 

“If one has a job offer to start a new job six months from now, and I decided not to take it. I don’t call up my future employer and say I’m resigning. That stretches the meaning of the word resigned beyond its ordinary meeting,” said Ryan Wilson, the attorney for the state Republican Party. 

He said the District 40B special election should have been set after the House convened Tuesday down a member.

Attorneys arguing to keep things on track basically said Walz followed the law. There’s one law to put an election in motion when it’s certain that a seat will be empty. That way, they said, residents aren’t unrepresented for too long.

Justices peppered the lawyers with questions. 

Justice Gordon Moore noted how much work has already gone into the election: Ballots are printed, some have been cast and other preparations are in full swing.

“Shouldn’t we be concerned here about the level of potential of logistical frenzy or challengers and voter confusion that would result from completely nullifying this ongoing election when everyone here agrees that the voters of District 40B will be filling this seat at some point?” Moore asked Wilson.

The Republican attorney said any expense or problems are the fault of Walz rushing the election.

Chief Justice Natalie Hudson pressed Hartshorn, the assistant attorney general, on how Johnson could resign a seat he never formally had and if that mattered given the law Walz cited to call the election when he did.

“It says if a future vacancy becomes certain to occur. I just wonder how certain it was to occur,” Hudson asked. 

Hartshorn said the letter from Johnson to Walz was sufficient and made clear he wouldn’t backtrack on his decision to give up the seat.

“Under any circumstances, whether he can formally do the thing that has the term ‘resign,’” Hartshorn said, “he has, like anyone who has a right, he has the right to waive that right. He has the right to give up that right.”

More than 1,200 absentee ballots have already been sent out, a lawyer for Ramsey County told the court. Under the current schedule, a new lawmaker could be seated by early February. It takes a bit of time to canvass and certify the results after the election.

If the election is canceled and has to be rescheduled, it could be late February or early March before a new election can be held.

Wednesday’s hearing included six justices. Justice Karl Procaccini, who worked previously as Walz’s general counsel, recused himself. All of the justices were appointed by Democratic governors, but that doesn’t mean they’ll reflexively side with one party over the other.

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Minnesota Supreme Court justices on Wednesday promised to decide quickly whether a special Roseville-area election critical to deciding power in the House happens as scheduled on Jan. 28 or gets pushed deeper into the legislative session.

Minnesota Supreme Court weighs postponing election crucial to Capitol control

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