The South Dakota Supreme Court advised yesterday that 24 Senators were wrong and that Lieutenant Governor Tony Venhuizen was right: the South Dakota’s Lieutenant Governor has constitutional authority to cast tie-breaking votes when presiding over the Senate.
Last month, Lieutenant Governor Venhuizen cast a tie-breaking vote to salvage Senate Bill 25. For the first time in 135 years, a senator, President Pro Tempore Chris Karr (R-11/ Sioux Falls), raised a point of order to challenge the validity of the L.G.’s vote. Venhuizen offered a brilliant and detailed justification of his tie-breaking authority that Karr failed to directly rebut. The Senate nonetheless overruled Venhuizen’s ruling and supported Karr’s point of order on a 24–10 vote.
Article 4 Section 5 of the South Dakota Constitution says “The lieutenant governor shall be president of the senate but shall have no vote unless the senators be equally divided.” 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.” The question Senator Karr is, which section takes precedence?
No one has ever litigated this question in South Dakota. Governor Larry Rhoden thus invoked his constitutional authority to ask the Supreme Court for an advisory opinion on the Lieutenant Governor’s tie-breaking power. Yesterday, one day after Venhuizen declined to use his disputed tie-breaking power to rescue Karr’s sales-tax bill from stalemate, the Supreme Court responded unanimously: Article 4 Section 5 takes precedence over Article 3 Section 18.
The Court says that these two articles “do not stand in conflict. Instead, the two provisions complement one another”:
Article III, § 18 describes what is required before a law may be passed—“assent of a majority of all members elected to each house of the Legislature.” Article IV, § 5 is more specific and expressly addresses a discrete situation in which a majority vote in the Senate is not obtained due to a tie. Article IV, § 5 resolves this impasse by allowing the Lieutenant Governor to cast a vote, thereby providing a method by which a majority can be obtained. Construing the text of the two relevant constitutional provisions together, we conclude that the Lieutenant Governor may cast a tie-breaking vote on the final passage of a bill. This interpretation gives both provisions effect and meaning [South Dakota Supreme Court, advisory opinion, 2026 S.D. 7, 2026.02.18, pp. 10–11].
The Supreme Court also said the Constitution means everything it says and means nothing that it doesn’t say. Article 4 Section 5 says the Lieutenant Governor can break ties. Nothing in the Constitution says, “but only some ties.”
Had the drafters of Article IV, § 5 intended to limit the Lieutenant Governor’s tie-breaking power, they could have indicated that intent in the text. But Article IV, § 5 contains no such indication, and we cannot interpret the Constitution to include language that is not there [S.D. Supreme Court, 2026.02.18, pp. 11–12].
The Court noted that Pennsylvania has a “but only some ties” provision in its Constitution: their Article 4 Section 4 says the L.G. “may vote in case of a tie on any question except the final passage of a bill or joint resolution, the adoption of a conference report or the concurrence in amendments made by the House of Representatives.” If South Dakota’s Constitution meant what Karr and his objecting Senators argue it means, it would say so in clear Pennsylvanian language.
The Court footnotes a rejection of the objecting Senators’ claim that Article 3 Section 18’s requirement of “assent of a majority of all the members elected to each house” excludes the Lieutenant Governor, who is not elected to the Senate:
However, when vacancies arise, the Governor is empowered to make appointments to fill these vacancies. Article III, § 10. Under the Senate Leadership’s logic, appointed members of each house would also be prohibited from voting on the final passage of legislation because they, like the Lieutenant Governor, have not been elected to the Senate [S.D. Supreme Court, 2026.02.18, p. 10, footnote 3].
There are no gubernatorial appointees in the Senate, but Karr’s position on “members elected” would have mooted the votes of two House members, Rhoden appointees Czmowski and Fosness, on final passage of any bills or resolutions.
The Supreme Court’s opinion rests on two of the four canons of statutory and constitutional construction that Lieutenant Governor Venhuizen deployed in his explanation to the Senate of his constitutional power, “specific over general” and “presumption against surplussage”. Venhuizen may be angling to become Governor someday (DFP Crystal Ball says expect the first run in 2034), but his astute and now court-endorsed grasp of the tie-breaking question demonstrates that, should he tire of presiding and breaking ties in the Senate (but why would he? What a cool job!) he might be just as aptly suited for another top job: chief justice of the South Dakota Supreme Court.
Having lost this argument, Lieutenant Governor Venhuizen may resume using the tie-breaking power that he decorously declined to use the day before, letting Senator Karr’s Senate Bill 195 die in a 17–17 stalemate. If Senator Karr wishes to push the Executive Branch out of Senate lawmaking, he’ll have to push for a change to the Constitution via the pending Senate Joint Resolution 508.