The Making of a Majority: How a 67-67 tie in the Minnesota House became a 68-66 majority
History repeating
In the Winter 2024 issue of our magazine Thinking Minnesota, I wrote about the “Minnesota Miracle” of 1978 which saw, among other outcomes, the election of a tied state House, balanced 67 seats to 67. Little did I know that the election in November would produce exactly the same result.
“Democrats and Republicans now held equal numbers of seats in the house,” Dave Kenny and Thomas Saylor wrote of the results of the 1978 election in their book Minnesota in the 70s, before adding, somewhat coyly, “but the DFL, through legislative and legal maneuvering, retained control of that chamber.” How so? In a book titled Minnesota Standoff: The Politics of Deadlock, an Independent-Republican (IR) Representative, Rod Searle, told the story.
Compromise
After the election, Searle was elected IR caucus leader and set to work negotiating a power sharing agreement with his DFL counterpart, Irv Anderson. “[W]e knew,” Searle noted, “the DFL would be reluctant to shed the mantle of leadership.”
In his first meeting with Anderson, Searle:
…pursued the subjects of personnel and office space, and pointed out the critical need to take care of these problems as quickly as possible.
…Irv, however, showed no interest in these issues and dismissed my appeal. The DFL leader seemed laid back and at ease on the eve of negotiations – as though he knew something I did not…
As formal meetings got underway, Searle:
…soon realized why they were reluctant to hurry. There were still several automatic recounts (required by Minnesota law when legislative races are decided by fewer than 100 votes) underway, and I’m sure the DFL was hoping that a reversal would give them back the much-cherished majority. There was also the possibility that several contests might end up in District Court, which could further delay the final outcome of the election. The most noteworthy of these involved Robert Pavlak (IR, West St. Paul) who upset incumbent DFLer Arnold Kempe. As our deliberations commenced, District Judge Robert Breunig began hearing an unfair campaign practices suit brought against Pavlak by the DFL Party.
Pavlak was an interesting character. His father, Leo, was a South St. Paul police officer who was shot dead by Arthur Barker of the infamous Ma Barker Gang during a payroll robbery in 1933. When his mother died of cancer the following year, 10 year old Pavlak wound up in an orphanage in Milaca. He served in the Marine Corps during World War II and joined the St. Paul Police Department afterwards. Elected to the House in 1966, he was unseated by Kempe, another wartime Marine, now working as a lawyer, in 1974.
During the campaign, Pavlak sat for an interview with Saint Paul Dispatch editor William Sumner during which he provided documents showing that Kempe had missed 329 out of 1,798 roll call votes. This was accurate, but a Dispatch editorial misinterpreted the documents and mistakenly claimed that Kempe had missed 325 of 329 roll call votes. While Pavlak’s campaign contacted the Dispatch to correct certain other inaccuracies in the editorial, it also reprinted at least 1,800 copies of it and circulated them in the district just before election day. The DFL argued that Pavlak had violated state election law by reprinting and circulating the Dispatch editorial.
In St. Paul, negotiations between the DFL and IRs dragged on past Christmas. On December 29, Searle:
…asked when we would finally resolve the issue of staffing, equipment, and office space. Butter would not have melted in [Anderson’s] mouth. All he would answer was “Tuesday.”
Tuesday was the day scheduled for Judge Breunig’s ruling on the Pavlak-Kempe case. Did Irv expect to be back in the majority?
That Tuesday, January 2, 1979, the negotiators had to digest the news that one on the DFL side, Richard Kostohryz, had suffered a heart attack and would be absent for two weeks. Later, the IRs gathered for their first caucus since November. “The highlight of the evening came after a phone call from Pavlak’s attorney with the news that Judge Breunig had dismissed Kempe’s unfair campaign practices suit against Pavlak that afternoon,” Searle wrote. “The announcement brought a rousing standing ovation for Bob. His big smile seemed to portend happier days ahead for himself and the IR caucus.”
These hopes seemed well placed when, the following day, Anderson announced that the DFL would not appeal Breunig’s decision to the State Supreme Court and offered concessions in negotiations. Carl Johnson, a DFL negotiator, recalled: “The Kostohryz heart attack and then the Pavlak decision did have an effect on the Speakership…Irv could see his tower crumbling.” To suggestions that the IRs use their temporary one vote advantage to seize the Speakership, Rep. Bill Dean replied: “I’m wary of the G.O.P. taking advantage of a sick man in hospital…If we meet on Friday, the public reaction might be very negative, not to mention the DFL will be shoving it down our throats for the next 10 to 15 years.” A deal between the DFL and IR negotiators was finally signed on January 8 which saw Searle elected Speaker.
Hardball
Searle would not remain Speaker for long.
Despite Anderson’s promise, “the DFL-controlled Senate Rules Committee appropriated $5,000 of public funds to finance an appeal [of the Breunig decision] to the Supreme Court,” Searle recalled “The House IRs cried foul and accused the Senate of meddling in House affairs.” On May 11, the Minnesota Supreme Court held that Pavlak’s campaign had violated state election law but declined to overturn the election result. Article 4, Section 6 of the Minnesota Constitution provides that “Each house shall be the judge of the election returns and eligibility of its own members.” The Court interpreted this as ousting the courts of jurisdiction over the Pavlak case. Section 6, the court held, was “an absolute grant of constitutional power [to the legislature] which may not be delegated to or shared with the courts.” Accordingly, the justices concluded that “we have no jurisdiction to issue a final and binding decision in this matter, and our opinion by statute will be and by the Minnesota Constitution must only be advisory to the House of Representatives.” It was a matter for the House.
“DFL leaders immediately called for the entire House to debate the issue and to vote on Pavlak’s ouster,” Searle wrote. Searle sought to delay the matter by referring it to the evenly split Committee on General Legislation and Veterans Affairs, “[b]ut events were to dictate otherwise:”
House Rules precluded Pavlak from voting on his own election contest. But it was not clear whether he could vote on procedural motions that would determine whether the contest ever came to a vote. On Monday, May 14, I ruled that Pavlak could vote on such motions. Irv Anderson immediately challenged the ruling, but was defeated on a 67-67 party-line vote. Pavlak then asked to address the House. His face red and his hands shaking with anger, he proclaimed his innocence and pleaded with lawmakers to stop acting as “the judge, jury, and hangman” until he received a fair hearing. At the conclusion of his impassioned address, Pavlak collapsed and was rushed to a nearby hospital suffering from severe emotional strain.
Pavlak’s illness opened the door for the DFL to proceed with his ouster. Within a few hours, they pushed through a motion (67-66) requiring the House to act on the Pavlak case by the end of the week. The action set off a round of legal maneuvers by both sides. At the request of Pavlak’s attorney, Patrick O’Neill, Ramsey County District Judge Otis Godfrey issued a temporary restraining order “to prevent the denial of his (Pavlak’s) basic constitutional rights to participate and assist in his own defense, confront and cross-examine witnesses against him and testify on his own behalf.” The Supreme Court reviewed Godfrey’s order, at the request of the DFL caucus leaders, and overturned it the following day.
So, on May 19, with Pavlak unable to participate, the House voted 67 to 66 on a party line vote to vacate his seat and order a new election. Pavlak ran again, despite an attempt by Secretary of State Joan Growe to bar him, but was defeated by just 321 votes. Such was the “legislative and legal maneuvering” by which a 67-67 tie was turned into a 68-66 DFL majority.
When the House reconvened in January, Searle was ousted as Speaker. But, reaping the rewards of his autocratic behavior, the DFLers, with some IR connivance, opted to elbow Anderson aside and replace Searle with Fred Norton instead. Searle left the House in 1980. Anderson eventually served as Speaker from 1993 to 1997. Pavlak retired from the St. Paul Police Department with the rank of lieutenant in 1981 and was appointed the United States Marshal for the District of Minnesota by President Reagan, retiring in 1990.