by Karl Kurtz
New York's musical chairs situation in which Lt. Governor David Paterson will become governor and Senate Majority Leader and President Pro Tempore Joe Bruno will become acting lieutenant governor raises a curious question reported on by The New York Times blog, City Beat: "In a Senate Tie, Could Bruno Vote Twice?"
In other words, could Senator Bruno vote once as a senator and then again, in the event of a tie, as the lieutenant governor who by constitution has a tie-breaking vote? The issue is of considerable interest in New York because of the narrow 32-30 margin for the Republicans in the Senate. This situation of the temporary Senate president also serving as lieutenant governor will persist through the elections of 2008, in which all New York senators are up for election, until the next gubernatorial election in 2010. If the Senate were to be tied after the 2008 elections, this question would become critical and could determine which party holds the majority.
Not surprisingly, this issue is a matter of some dispute in New York. According to the Times posting, Republicans say that the pro tem would have two votes, while the Democrats say no, he would not. The experts are uncertain.
This has led inevitably to a question from New York to NCSL: What is the practice in other states on this matter? The short answer is that Pennsylvania appears to be the only other state where it might be possible for a senator/acting lieutenant governor to vote twice. For the long answer, read below the jump.
In order for this question to be relevant in another state, several conditions have to be present. First, the lieutenant governor has to preside over the senate and have the right to vote in the event of a tie. There are 23 states that meet these criteria.
Second, in the event of a vacancy in the office of Lt. Gov., the president pro tem of the senate must assume the duties of the lieutenant governor without giving up his or her seat in the senate. There are only seven states besides New York where this is true: Alabama, Mississippi, Nevada, North Carolina, Pennsylvania, Texas and Vermont. But in five of these seven states, there are either rules or court decisions that prevent more than one vote:
- In Vermont, Chapter 2, Section 19 of the Constitution anticipates this situation: "The Lieutenant-Governor shall be President of the Senate, except when exercising the office of Governor, or when the office of the Lieutenant-Governor shall be vacant, or in the absence of the Lieutenant-Governor, in which cases the Senate shall appoint one of its own members to be President of the Senate, pro tempore. And the President of the Senate shall have a casting vote, but no other." [Emphasis added here and following.]
- In Alabama, Section 51 of the Constitution says, “The senate, at the beginning of each regular session, and at such other times as may be necessary, shall elect one of its members president pro tem thereof, to preside over its deliberations in the absence of the lieutenant governor....” In the last 40 years, two governors have left office, been replaced by the lieutenant governor, and the president pro tem has become presiding officer of the senate. A 1969 opinion of the Alabama Supreme Court [284 Ala. 129, 222 So. 2d 714 (Ala. 1969)] said, “The president pro tempore of the Senate is not entitled to a second vote in case of a tie vote in the senate.... It is clear from the reading of this section (117) and Sec. 51 that the right to vote in case of a tie is conferred on the lieutenant governor only, and not on the president pro tempore of the senate when he is presiding in the absence of the lieutenant governor.”
- Nevada and North Carolina are similar to Alabama in that the pro tem becomes presiding officer in the event of a vacancy in the office of lieutenant governor but does not assume the title or other duties of the lieutenant governor. This has not been tested in court in either state, but the view among staff attorneys is that the tie-breaking vote belongs to the office of lieutenant governor, not the senator who is filling that position.
- In Mississippi, where the pro tem also carries out the duties of a lieutenant governor who becomes governor, Senate Rule 123 anticipates this problem: "When a member of the Senate is presiding and a tie vote occurs on any proposition, the decision shall be in the negative." By specifying the outcome of a tie, this rule implicitly says that the pro tem acting as lieutenant governor cannot cast a second vote.
- In Texas the Constitution specifies that in the event of a vacancy in the lieutenant governorship, "the Committee of the Whole Senate shall elect one of its members to perform the duties of the Lieutenant Governor in addition to the member's duties as Senator...." Senate Rule 6.19 states "If the Senate is equally divided on any question when the Lieutenant Governor is not present, such question or motion shall be lost." This appears to be similar to Mississippi, but my Texas informant says that whether a senator performing the duties of the lieutenant governor can be considered to be the lieutenant governor is potentially ambiguous and has never been tested. "It is possible that that could happen but highly unlikely," he said. One reason it is unlikely is a two-thirds vote requirement on most matters in the Texas Senate, which makes a tie-breaking vote moot. Another is the political reality and tradition that the senators do not like to allow the lieutenant governor to have this power, so they find compromises or other solutions when facing the possibility of a tie vote.
That leaves Pennsylvania. Here is what Mark Corrigan, Secretary of the Pennsylvania Senate had to say:
Yes, this situation could happen in Pennsylvania. In fact, when Tom Ridge became Director of Homeland Security in D.C., the lieutenant governor became governor and the pro tempore became lieutentant governor and continued to hold his Senate seat. (This was litigated.) We never had a tie vote where the issue you describe would have arisen. Without doing a lot of research, it appears to be possible that a pro tem, acting as lieutenant governor, could use both his own vote and the casting vote.
What about the states like Maine, New Hampshire, New Jersey (before a constitutional amendment approved in 2005), Tennessee and West Virginia where there is no lieutenant governor and the senate leader succeeds to the office of the governor in the event of a vacancy? The question of the possibility of two votes does not apply because the senate leader does not have a tie-breaking vote in these states.