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Path is clear to Lt. Gov. Fischbach's Senate seating, but lawmakers say a challenge could be coming

Senate Minority Leader Tom Bakk (left) fields a reporter's question Tuesday, Feb. 13, 2018, at a pre-session briefing. Senate Majority Leader Paul Gazelka looks on. Michael Brun / Forum News Service

ST. PAUL — With a week to go before the start of the 2018 legislative session, lawmakers said Tuesday, Feb. 13, they do not foresee any last-minute legal actions preventing a state senator from holding a dual role as lieutenant governor — but a court challenge is possible.

Senate Minority Leader Tom Bakk, D-Cook, said there is not enough time before the noon Feb. 20 session start to challenge the seating of Sen. Michelle Fischbach through the courts.

His comments came during a Forum News Service-sponsored pre-session briefing with Gov. Mark Dayton, Senate Majority Leader Paul Gazelka, R-Nisswa; Bakk; House Speaker Kurt Daudt, R-Crown; and House Minority Leader Melissa Hortman, D-Brooklyn Park on Tuesday.

A Ramsey County judge already dismissed a lawsuit against Fischbach, R-Paynesville, on Monday, saying the suit by a resident in Fischbach's district "lacks ripeness." But Bakk said an instance in which Fischbach casts a tie-breaking 34th vote could trigger a new lawsuit.

The constitutional debate over Fischbach's Senate seat took on greater significance after Monday's special election in the Twin Cities east metro District 54, where Cottage Grove DFLer Karla Bigham defeated Republican Denny McNamara of Hastings. The victory maintained Republicans' one-person majority in the state Senate at 34-33.

Gazelka said the special election may have changed how the debate over Fischbach's seat plays out, though he noted there have been at least seven times in the past in which a senator served as lieutenant governor for a period of time.

Gazelka further downplayed the implications of a split Senate, pointing to accomplishments made in the 2017 legislative session with a 34-33 divide between the parties.

"It was certainly difficult to navigate, but not impossible," Gazelka said.

Daudt echoed the sentiment, adding he is hopeful lawmakers can put politics aside and work on legislation important to Minnesotans.

"Even if the Senate is tied, I think the issues that we will deal with this session transcend partisan politics," Daudt said.

After the forum, Bakk said he had little time to think about the next step in the Fischbach saga with his attention focused on the Bigham-McNamara race. However, he hinted that if Fischbach presides over the Senate starting Feb. 20 or takes any vote that otherwise would have been a tie, Democrats may take action.

Fischbach, who was first elected to the Senate in 1996, automatically became lieutenant governor when Democratic Gov. Mark Dayton appointed then-Lt. Gov. Tina Smith to replace Al Franken as U.S. senator. Franken officially resigned in January amid sexual harassment allegations.

Similarly, the Senate District 54 special election was held after Sen. Dan Schoen, D-St. Paul Park, resigned following sexual misconduct claims.

Dayton said he has a good relationship with Fischbach and looks forward to working with her in either capacity as a senator or lieutenant governor.

The court case dismissed Monday can be brought again, the judge said, once it is known if Fischbach resumes her Senate work and someone can show harm with her holding both offices.

The state Constitution bans lawmakers from holding another public office, but Fischbach and her supporters say court cases indicate she can.