Developing news out of Carson City with only three days to go in this legislative session. The Nevada Legislature could find itself in another history-making situation, but this time it will be the state Senate making history.
The Las Vegas Sun’s Anjeneatte Damon reports that Sen. Joyce Woodhouse’s gravely ill husband has necessitated her return to Las Vegas, putting the Nevada Senate in a potential 10-10 voting deadlock, with the Democrats only barely having control of the chamber with all members present. Why is this an issue? Because the Lieutenant Governor, Brian Krolicki, who is also President of the Senate, is constitutionally empowered to give a “casting vote” when the Senate is equally divided.
This has whipped up reporters, pundits, lobbyists, and others in a panicked frenzy about whether Republicans could start passing bills that the Democrats don’t really want passed. It has the makings, in the final moments of a session, of another Nevada Mining Association v. Erdoes mess that wasn’t resolved until the Nevada Supreme Court stepped in.
Casting vote vs. majority of members elected
Two potentially conflicting constitutional provisions are on point. First, Article 4, Section 18, of the Nevada Constitution states, with the exception of revenue generating bills (which require two-thirds votes), “a majority of all the members elected to each House is necessary to pass every bill or joint resolution.” With 21 Senators elected to the Senate, 11 is a majority of all members elected. With Sen. Woodhouse absent, only 20 senators will be voting, setting up a potential 10-10 tie. Enter the second provision. Article 5, Section 17, states “[The Lieutenant Governor] shall be President of the Senate, but shall only have a casting vote therein.”
A “casting vote” in parliamentary law is recognized as “[a] deciding vote cast by the chair of a deliberative assembly when the votes are tied.” Black’s Law Dictionary 1711 (9th ed. 2009); see also Mason’s Manual of Legislative Procedure § 513 (2010 ed.). The Vice President of the United States and President of the Senate is said to have a casting vote. “[T]hat to secure at all times the possibility of a definite resolution of the body, it is necessary that the President [of the Senate] should have only a casting vote.” The Federalist No. 68 (Alexander Hamilton).
Notably, the U.S. Constitution does not have language similar to Nevada’s Article 4, Section 18, requirement that bills pass with a majority of all members elected. The Lieutenant Governor is not a Senator, but he is allowed a casting vote. The question becomes, in light of the requirement that bills pass with a majority of all elected to the Senate, may the President of the Senate cast a deciding vote if the Senators are equally divided 10-10?
Unsurprisingly, there is no case law on point in Nevada. In a quick search, there also appears nothing on point from the Nevada Constitutional Debates. The operative constitutional language has existed since the Nevada Constitution was ratified in 1864.
There is a Nevada Senate rule on point, which complicates matters. Rule No. 31 of the Senate Standing Rules provides “A question is lost by a tie vote, but when the Senate is equally divided on any question except the passage of a bill or joint resolution, the President may give the deciding vote.” Thus, the Senate recognizes that the President of the Senate is empowered with some casting vote, but expressly deprives the vote on final passage of a bill or joint resolution. The problem is the Senate Rule might be contrary to the Nevada Constitution, and thus is unconstitutional and must yield to the President of the Senate’s power to give casting votes.
Casting vote wins
Other jurisdictions that have considered this issue have found, even when constitutional language requires a majority of the elected members for a bill to pass, a Lieutenant Governor giving a casting vote, even on final passage, is a proper and legitimate use of the power. In State ex rel. Easbey v. Highway Patrol Board, 372 P.2d 930 (Mont. 1962), the Montana Supreme Court ruled that a bill that was passed with the Lieutenant Governor’s casting vote was valid. There, the Court ruled that when a casting vote is exercised, “It produces ‘a vote of a majority of all the members’ present in the Senate and voting upon the proposition submitted.” Id. at 939. Of note, however, in that case, both the Montana Constitution and the Montana Senate’s rules allowed for a casting vote in all cases. In Nevada, there is the added wrinkle of the Senate Rules and Nevada Constitution perhaps being disharmonious on this point. Other jurisdictions have reached the same result. See Opinion of the Justices, 225 A.2d 481 (Del. 1966); Advisory Opinion on 1978 PA 426, 272 N.W.2d 495 (Pa. 1978).
Casting vote loses
However, other jurisdictions have reached contrary results. See, e.g., Center Bank v. Dept. of Finance and Banking, 313 N.W.2d 661 (Neb. 1981) (4-3 decision) (holding language requiring majority of all members controls over Lt. Gov.’s casting vote). The dissent in Center Bank noted that the language requiring a majority is simply an aid to determine how to count a majority (i.e., a simply majority, meaning a majority of the members present and voting, a quorum being present, or an absolute majority, meaning a majority of all members elected). “In my opinion, the provisions of article III, § 13, are intended only to aid in determining how the necessary majority is to be computed.” Id. at 665 (dissenting opinion). The Indiana Supreme Court simply refused to decide whether a casting vote was proper, citing to the enrolled bill doctrine, which prevents courts from looking behind the certifications of the officers and clerks of both houses that a bill was duly passed. See Walsh v. Sells, 192 N.E.2d 753 (Ind. 1963).
Thus, if this issue were to actually rear its ugly head, it would create quite a constitutional mess for the Nevada Supreme Court to decide.
An unlikely vote to be cast
But a lot of things have to line up for this issue to actually present itself. First, the Senate must be equally divided and one short of reaching a constitutional majority on final passage (10-10). That result is unlikely, except on the most contentious, politically-oriented bills. Second, 20 members must be present and voting. Democrats could stop this parliamentary maneuver by simply disappearing themselves, and thereby depriving the Republicans who are left of a quorum to do business. But at that point, the Republicans could move to compel the attendance of absent members and to arrest those who refuse to attend. So to prevent that unpleasantness, all Democrats would have to do is ensure enough of their members are present to achieve a quorum (only 11 Senators are needed for a quorum). If 11 Senators are present, 10 Republicans and 1 Democrat, the vote would be 10-1, and that is constitutionally insufficient to pass a bill, and it isn’t a tie that would allow Lt. Gov. Krolicki to cast a tie-breaking vote.
At that point, the showdown ends or Lt. Gov. Krolicki decides to escalate it by declaring that, when a bill is one vote short of reaching a majority and his vote can tip the scale, he gets to vote, which would create yet another constitutional question. And all of this happening in the final days, hours, or minutes of session surely would lead to much unpleasantness.
Right before posting this, reporters and others on Twitter have picked up on the Constitution/Rules conflict I’ve discussed above.
And now it’s reported that Democrats and Republicans will play nicely until Sen. Woodhouse returns.
Which makes this post, like most others here, purely academic. But as with so many other provisions governing legislative procedure, the drafters of the Nevada Constitution sure have demonstrated their ability to create as much ambiguity as possible where there should be none.
Update: June 2, 2013
Political commentator Jon Ralston was able to unearth an e-mail from 2006 listing historic uses of the Lieutenant Governor’s casting vote. Being without my own set of journals from the Nevada Legislature, and mostly unwilling to waste hours at the Boyd Law Library, I’m immeasurably appreciative when stuff like this surfaces. Some interesting points, the Lieutenant Governor has given casting votes on final passage before, but only three times were they decisive. Once in 1915 and twice in 1977, the Lieutenant Governor cast a yea vote when the Senate was equally divided on final passage of bills, changing the result from the measures losing to the measures passing. The four nay votes, two each in 1979 and 1981, were purely symbolic because a 10-10 tie vote results in a measure being lost even without the casting vote against.