Breaking a Tie in the Senate

(Update- see this more recent post on the possibility of a court challenge to the Lieutenant Governor’s vote).

It appears the Virginia Senate, following Tuesday’s elections, will be equally divided, with Republicans holding 20 seats and Democrats holding 20 seats. The Democrats want a shared-power arrangement, meaning that committee chairmanships and other responsibilities would be divided equally between the two parties. This is apparently what was done on the one previous occasion, in the 1990s, where such a situation arose. Republicans, on the other hand, contend that they are entitled to control the chamber because the Republican Lieutenant Governor has the power to break ties.

One Democratic Senator, “Chap” Petersen, told the Washington Post that “the lieutenant governor is not a member of the Senate” and that, if Republicans seized power, Democrats could sue to stop it. Senator Petersen seems to be saying that the Lieutenant Governor lacks the constitutional power to break ties with regard to internal matters such as committee assignments and other rules.

The Virginia Constitution provides that “[t]he Lieutenant Governor shall be President of the Senate but shall have no vote except in case of an equal division.” This provision was apparently (my research on this is admittedly cursory) added as part of the Constitution of 1869. It closely parallels Article I, Section 3, clause 4 of the U.S. Constitution, which provides that “[t]he Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.”

Because of the similarity of the constitutional provisions, it is worth taking a look at how the U.S. Senate has dealt with similar issues.

On several occasions during the 19th Century, questions were raised as to whether the Vice President’s right to break ties extended beyond legislative matters. For example, in 1850 Vice President Millard Fillmore inquired of the Senate whether “he might vote in a case where there was a tie in the election of an officer of the Senate.” Senator (and former Vice President) John Calhoun responded that he had voted several times on executive nominations during his tenure as Vice President. “The opinion of the Senate seeming to be in favor of the power of the Vice-President to vote in the case before them, Mr. Fillmore cast his vote for one of the candidates.” Hinds Precedents § 5972.

In 1877 the issue arose again when the Senate was considering a question of whether to seat a Senator. The vote being equally divided, Vice President William Wheeler voted in the negative. Senator Thurman initially challenged the Vice President’s right to vote on the question, but, after a debate in which the Fillmore precedent was discussed, Thurman withdrew his challenge and Wheeler ruled that there was “no doubt of his right to vote in all cases in which the Senate is equally divided.” Id. § 5977.

Finally, in 1881 Vice President Chester Arthur cast the tie-breaking vote with regard to organizing the Senate at a time when the parties had equal voting strength. Although Senator Saulsbury expressed the opinion that the Vice President was not empowered to vote on such a question, the earlier precedent was again cited, and the Vice President proceeded to break the tie. Id. § 5975.

In the U.S. Senate, therefore, the precedent seems well-established that the Vice President’s tie-breaking vote extends to non-legislative votes, including matters relating to control and organization of the chamber.