- Associated Press - Thursday, December 21, 2017

ST. PAUL, Minn. (AP) - Republican state Senate President Michelle Fischbach cannot legally keep her Senate seat when she becomes lieutenant governor, the Minnesota attorney general’s office said Thursday.

Solicitor General Alan Gilbert issued an opinion saying an 1898 decision by the Minnesota Supreme Court that Republicans have pointed to is no longer valid. Gilbert said the duties of the lieutenant governor have changed since then, but noted that only a court can decide the dispute.

Fischbach has said she expects to keep her seat in the Senate when she becomes Democratic Gov. Mark Dayton’s lieutenant governor. Dayton has appointed current Lt. Gov. Tina Smith to take U.S. Sen. Al Franken’s place. According to the Minnesota constitution the Senate President becomes lieutenant governor.

But Republicans currently hold a one-seat majority in the Minnesota Senate. If she can’t hold both jobs the partisan breakdown would be tied.

In a statement, Senate Republican Leader Paul Gazelka said the opinion from Democratic Attorney General Lori Swanson’s office was “just that - an opinion.” Gazelka said the nonpartisan Senate attorney has said Fischbach would retain her Senate seat while she temporarily serves as acting lieutenant governor. Dayton’s term ends in January 2019.

But Minnesota Democrats argue the state constitution bans legislators from holding another office. If Democrats prevail, it would mean Republicans lose their slim majority in the state Senate, at least temporarily.

Fischbach has served in the Minnesota Senate since 1997. The Legislature returns for its regular session on Feb. 20.

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