If Harris-Walz wins, here's what happens in Minnesota

Certainty for gubernatorial succession, but slightly less so for lieutenant-gubernatorial succession

This morning, Vice President Kamala Harris selected Minnesota Governor Tim Walz as her running mate, finalizing the general-election matchup after an eventful month.

While there’s much to say about the effects of Walz’s selection, I want to focus on a narrower question, which I’ve explored before—if the Harris-Walz ticket wins, what would happen next in Minnesota?

The quick and easy answer is that Lieutenant Governor Peggy Flanagan would become Governor for the remainder of Walz’s term, which expires in 2027, and that the State Senate President—currently Bobby Joe Champion—would become Lieutenant Governor. This would make history in two ways: Flanagan would become the first Native woman to serve as governor of any state, and Champion would become the first Black Lieutenant Governor in Minnesota. However, as it relates to the process of succession, there are some complexities that add a bit of uncertainty to how this situation could play out.

In Minnesota, as in many states, the governor and lieutenant governor are elected on the same ticket.¹ The tickets form before the primary, and primary voters cast ballots for a single gubernatorial-lieutenant gubernatorial unit. Tim Walz was elected Governor of Minnesota in 2018 and 2022 on a ticket with Peggy Flanagan.

If the Governor leaves office, the Minnesota Constitution provides that “the lieutenant governor shall be governor[.]” This language, which has remained pretty much intact from the state’s original constitution, is surprisingly significant. In the past, other state constitutions have used less definitive language, which has created some challenging logistics for gubernatorial succession. For example, many constitutions in other states have provided that the “powers, duties and emoluments of the office” of governor—but not the office itself—shall “devolve upon” the lieutenant governor in the event of a vacancy. When interpreting this language, state supreme courts have usually held that it means that the lieutenant governor does not become governor, but instead merely acts as governor. But in Minnesota, it’s been clear that the Lieutenant Governor becomes Governor.

When there’s a vacancy in the lieutenant governor’s office, the state constitution uses similarly definitive language. In 1857, the constitution provided that the President of the Senate “shall be Lieutenant Governor in case a vacancy should occur in that office”; it currently provides, “The last elected presiding officer of the senate shall become lieutenant governor in case a vacancy occurs in that office.” So it’s clear that the State Senate President becomes Lieutenant Governor.

The current President of the State Senate is Bobby Joe Champion, who represents a dark-blue district in downtown Minneapolis. And because the Minnesota State Senate is not up for election this year, his stepping into the Lieutenant Governor’s office would usually not be in question.

However, the State Senate is currently tied, 33-33, with one vacant seat that will be filled by a special election this November. The Democrats’ continued majority in the Senate is entirely dependent on winning the special election; if they lose it, the Senate would flip to 34-33 Republican control within a month of the election,² giving Republicans an opportunity to elect a new State Senate President.

That isn’t very likely, though. The special election is taking place in a senate district that both Joe Biden and Tim Walz won by double digits in 2020 and 2022, respectively. If Democrats are doing badly enough in Minnesota to lose such a district this year, especially with Walz on the ticket, then we’re probably not concerned with what would happen in the event of Walz becoming Vice President. And in practice, if that were to happen, Walz could possibly resign early, which would eliminate the concern altogether.

So assuming that Democrats win the special election and regain their 34-33 majority, the biggest potential problem is how Democrats maintain their majority. Champion would become Lieutenant Governor if Walz became Vice President and Flanagan became Governor, but whether Champion would also be able to hold his State Senate seat is another question.

This question last presented itself in 2018, when then-Governor Mark Dayton appointed Lieutenant Governor Tina Smith to the U.S. Senate, and Senate President Michelle Fischbach became Lieutenant Governor. Attorney General Lori Swanson issued a non-binding advisory opinion that Fischbach could not simultaneously serve as a member of the Senate and as Lieutenant Governor.

Swanson’s argument, briefly summarized, was that while senate presidents could hold their offices and serve as lieutenant governor simultaneously in the past, things are different now. In the past, the Lieutenant Governor simultaneously served as President of the Senate—which was a fairly common arrangement nationwide—and “had no executive branch responsibilities.” However, in 1972, a constitutional amendment removed the Lieutenant Governor as Senate President—a change that took place pretty frequently around the country as states modernized their constitutions—and gave the office executive branch duties. Accordingly, Swanson concluded, a Senate Senate President’s simultaneous service as Lieutenant Governor following a vacancy would pose a problem. Like many constitutions, the Minnesota Constitution forbids a legislator from “hold[ing] any other office” within state government.

However, while Swanson’s argument hinted at litigation if Fischbach attempted to continue serving in both roles, the question wasn’t definitively resolved. Fischbach resigned from the Senate, delaying the question to another day—possibly January 20, 2025.

If Champion becomes Lieutenant Governor and resigns from the State Senate, his doing so would temporarily suspend the Democrats’ 1-seat majority in the Senate. Though there’s little doubt that Democrats would hold his seat in a special election, his resignation would once again tie the Senate, 33-33, for at least a month until the special election takes place.

There are a few ways around this. First, it’s possible that Swanson’s opinion is wrong. Keith Ellison, the current Attorney General, may well come to a different conclusion and hold that Champion would serve in both roles. Republicans would certainly have incentive to file suit, but the Minnesota Supreme Court might conclude that there’s no problem with Champion’s simultaneous service.

Second, even if Swanson’s opinion is right, it’s possible that the litigation might take long enough to resolve that, by the time that Champion resigns, the legislature will be out of session. This seems a potentially riskier approach, because it may threaten the constitutionality of any legislation for which Champion voted (and was the deciding vote).

The third possibility is that, if the Harris-Walz ticket wins, Walz resigns from the governorship well in advance of January 20, accelerating the timeline. If Flanagan becomes Governor and Champion becomes Lieutenant Governor much earlier than expected, then the special election could be held on a similarly expedited schedule. Minnesota law requires that state legislative elections take place within 40 days of the vacancy itself, so the entire matter could be resolved by January.

Or the fourth possibility is that the Flanagan-Champion team might conclude that the timeline for filling Champion’s seat is not a big enough deal to try any of the above possibilities. If the seat is filled by the end of February anyway, that might be a month of floor votes lost, but maybe it’s not worth risking litigation and controversy.

In the end, however, there’s no world in which Walz’s election as Vice President would threaten Democrats’ control over the Minnesota government. Though it’s possible that the state might encounter some difficult questions under its state constitution, adverse answers to these questions would not pose a long-term threat to the Democrats’ trifecta.

1. This was not always the case; from the state’s first gubernatorial election in 1857 through the 1970 election, governors and lieutenant governors were separately elected. In the midst of many states adopting similar changes, Minnesota voters ratified a constitutional amendment in 1972 that created team-ticket elections.

2. Minnesota law lays out the timeline for when and how quickly this takes place. Based on past precedent, it seems fair to expect that the results would be finalized and the winner would be eligible to be sworn in by early December at the latest.