Governor Larry Rhoden has asked the South Dakota Supreme Court to issue an advisory opinion on a dispute that broke out in the Senate last week when Lieutenant Governor Tony Venhuizen, as President of the Senate, cast a vote to break a 17–17 tie and pass Senate Bill 25, just like Vice-President J.D. Vance has voted to break ties to pass last summer’s budget reconciliation bill and put Pete Hegseth in charge of the military.
[Pause: To be clear, Tony Venhuizen is not just like J.D. Vance. Tony Venhuizen is eminently qualified for his job and for boss’s job. Unpause.]
Senator Chris Karr (R-11/Sioux Falls), who serves as President Pro Tempore and presides over the Senate if Venhuizen is away, rose to a point of order to challenge the validity of the President’s vote. The President ruled against the point of order, but Senator Karr appealed the ruling and the Senate supported him with a 24–10 vote:
- Yeas: Blanc, Carley, Deibert, Foster, Grove, Hohn, Howard, Hulse, Jensen (Kevin), Karr, Kolbeck (Steve), Lapka, Larson, Marty, Mehlhaff, Nelson, Otten, Perry, Peterson (Sue), Pischke, Smith, Voight, Voita, and Zikmund
- Nays: Crabtree, Davis, Duhamel, Miskimins, Reed, Rohl, Sauder, Schoenfish, Vilhauer, and Wipf
All three Senate Democrats sided with Karr in poking the Executive Branch in the eye. President Venhuizen ordered the journal revised to show that SB 25 failed on a 17–17 vote.
The Senate went on to reconsider, amend, and pass SB SB 25 on a 30–3 vote, but that’s not nearly as interesting as the Senate’s effort to deny the Lieutenant Governor the only really exciting thing the Constitution explicitly says he gets to do.
The dispute centers on two provisions of the South Dakota Constitution. Article 3 Section 18 says, “no law shall be passed unless by assent of a majority of all the members elected to each house of the Legislature.” Article 4 Section 5 says, “The lieutenant governor shall be president of the senate but shall have no vote unless the senators be equally divided.”
SDPB captures Friday’s exchange between the President and the President Pro Tempore in this video from the Senate, starting at 34:45:
Lieutenant Governor Venhuizen deployed four canons of statutory and constitutional construction:
1. Original Intent: Venhuizen said the records of the 1889 Constitutional Convention mention no debate over the LG’s Senate tie-breaking power. But the 1890 Senate rules, created by a number of Senators who also participated in drafting the constitution, acknowledged the President’s power to break ties, a rule and precedent that has stood since and was last used in 2010, when Lt. Gov. Dennis Daugaard cast a vote to break a tie and pass Senate Bill 169.
2. Structure of the Document: South Dakota’s Senate and the LG’s role as President is based on the United States Senate.
3. Specific over General: “When you have a more specific and a more general provision, the more specific controls.” Art. 3 Sec 18 is a general provision about passage of all bills by majority vote of members elect. Art. 4 Sec. 5 addresses the specific situation of equal division in the Senate. The specific tie-breaking authorization thus supersedes the general members-elect majority requirement.
4. Presumption Against Surplussage: Every phrase has meaning. “If the language saying that the Lieutenant Governor votes in the case of a tie does not apply because of the requirement of the members elect, it would raise the question, why is there at all? Why did they put it there? What was it meant to do?”
Venhuizen also cited Mason’s Manual (to which the Senate turns for any procedural questions not addressed in its rules, per Senate Rule 5-3) and a 1978 advisory opinion from the Michigan Supreme Court holding that identical provisions in that state’s constitution support the Lieutenant Governor’s role as Presidential tie-breaker in the Senate.
Senator Karr rose to argue that the core issue here is the separation of powers. Senator Karr contended that the tie-breaking rule applies only to keeping regular business moving and not to final votes on bills. But Senator Karr offered no canons of his own, no precedent, examples or outside authority, and no rebuttal to any of the specific points President Venhuizen made, just a lot of “I think….”
Without further discussion, the Senate endorsed Senator Karr’s largely unsupported claims over President Venhuizen’s well-documented and structured explanation of his constitutional role in the Senate.
As Venhuizen noted from the chair, South Dakota has never litigated this question. In 100 Sessions, the South Dakota Senate has never questioned the clear meaning of Article 4 Section 5. But the 101st Senate has decided to call into question the long-standing practice of the Lieutenant Governor breaking ties in the Senate over which he presides.
Lieutenant Governor Venhuizen says in his boss’s announcement of the request for an advisory opinion from the South Dakota Supreme Court, “As President of the Senate, my priority is to preside according to the Constitution and Senate rules and precedents. I would welcome clarity from the Court so there is no question in the future about the constitutional rule in this area.”
I also welcome constitutional clarity, as ought we all… but I expect the Supreme Court’s opinion will sound very much like the clear and painstakingly researched explanation Venhuizen gave from the chair Friday.
Wouldn’t it have been better for the Democrats to point out the hypocrisy and sloppy reasoning rather than play along for the fun of it?