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Voter sues Minnesota Lt. Gov. Michelle Fischbach for keeping Senate seat

Minnesota state Senate President Michelle Fischbach tells reporters on Dec. 13, 2017, that she plans to serve both as a senator and lieutenant governor. Don Davis / Forum News Service

ST. PAUL—Lt. Gov. Michelle Fischbach faces a lawsuit claiming it is unconstitutional for her to remain a state senator.

The suit filed Friday, Jan. 12, by Destiny Dusosky of Sauk Rapids, who lives in Fischbach's central Minnesota district, says she will be deprived of having a state senator if Fischbach tries to be both senator and lieutenant governor. Dusosky, like Capitol Democrats, says Fischbach violates the state constitution by holding both offices. Dusosky is a public union official.

Dusosky's action, filed in Ramsey County District Court, is the next stage of an ongoing disagreement between Republicans and Democrats stemming from the resignation of U.S. Sen. Al Franken amid allegations of sexually inappropriate behavior.

Fischbach became lieutenant governor after Democrat Tina Smith resigned as lieutenant governor to replace Franken. Gov. Mark Dayton appointed Smith.

Fischbach became lieutenant governor because she was the president of the state Senate.

None of that's in dispute.

Then Fischbach, a Republican from Paynesville who has refused to take the oath of office for lieutenant governor, announced she would hold both positions.

That's an apparent contradiction to a clause of the Minnesota Constitution that says state lawmakers can't hold other state positions, and that's what Friday's lawsuit hangs its argument on.

Fischbach, who has described herself as "acting lieutenant governor," and Senate Republicans have said the state Supreme Court has allowed the holding of both positions, and Friday's lawsuit begins what will undoubtedly be a back-and-forth legal argument over that.

The lawsuit asks the court to declare that Fischbach is violating the constitution and should be barred from exercising any powers of a state senator.

Fischbach reacted to the lawsuit In a statement Friday: ""Despite the domino effect started by Sen. Franken's resignation, my responsibilities as a senator have not changed. I will act as lieutenant governor as the Minnesota Constitution requires, but I remain committed to serving the people who elected me to the state senate."

If Fischbach is forced out of her seat, it's possible that Republicans could lose control of the Senate.

Senate Majority Leader Paul Gazelka, R-Nisswa, had tried to engineer a Smith succession that would give Dayton a fellow Democrat as lieutenant governor, but the Senate's top Democrat, Minority Leader Tom Bakk of Cook, never got on board.

On Friday, Gazelka said the lawsuit "is simply political maneuvering by Democrats to try to change the outcome of the 2016 election."

It doesn't appear Fischbach has a way to avoid being lieutenant governor.

The constitution says the last elected presiding officer of the Senate "shall" become lieutenant governor in a vacancy, and Fischbach herself has said she doesn't believe she could have refused to ascend.

Curiously, were she to resign from the position today, it appears she would immediately become the the lieutenant governor again, as she remains the last elected presiding officer of the Senate. The Senate is not in session now, so senators are unable to elect someone else.

Gazelka's plan would have gotten around this by having Dayton call a special session for the sole purpose of electing a different president, but Dayton said he would only do that if Bakk agreed, and Bakk didn't.

The Legislature returns to session Feb. 20.

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