Robbins: Follow the leader?
Aren’t you glad you don’t live in Georgia?
Now, don’t get me wrong, I’ve got nothing against the Peach State per se. This year’s Masters was a hoot. Savannah is as pretty as they come. And who doesn’t savor a Georgia peanut?
But that’s not what I’m referring to.
What’s got a burr under my saddle in this particular case is that it ain’t over. And the “it” that I’m referring to is the election season.
For most of us, the recent presidential and down-ballot culture wars, advertising barrage, and interminable election night that dragged on for the better part of a week was more than enough. But for the poor battered souls in Georgia, the fat lady hasn’t even loosened up her tonsils. Seventeen days post-presidential election, the beleaguered Georgia Secretary of State, Brad Raffesnberger, an avowed Trump supporter, certified Joe Biden as the winner in the Georgia presidential sweepstakes. But that ain’t the half of it.
What’s still to come are the — count ‘em — two Senate special elections. And all the advertising falderal that goes along with them. But this time, since control of the Senate is at stake, all the falderal is on steroids. To coin what I am certain is a Georgiaism, Oy vey!
Say what now?
You see, in Georgia it goes like this: In order to gain a Senate seat, the winner must garner a majority rather than a plurality of votes. In other words, to be declared the winner on Election Day (which, need I remind you, was Nov. 3), one must get 50% plus 1 vote. In this case, in both Senate seats … um … no one did, although in one of the two contests, one of the combatants was perilously close. But unlike darts and horseshoes, in Georgia Senate elections, close don’t count. And so …
There is a runoff. Or two to be exact. On Jan. 5 to be precise. And until then, the campaigns that we all celebrated at last were over, aren’t over in the state of Georgia. Not by a longshot.
What’s at stake ain’t much; only control of the United States Senate.
You see, when all the votes were tallied — with the exception of the Peach State — the score stood at 50 for the Republicans and 48 for the Dems. Presuming that both Dems succeed in Georgia, which may be more than a long drink of water, the score would stand at 50-50. Which raised the question in my mind anyway — if it turns out 50-50, then what?
Specifically, there are two questions, the first of which is easy. If there is a vote along strict party lines and the vote on a particular matter is a tie, the vice president is, in the immortal words of George W. Bush, “the decider.”
Under Article 1, Section 3 of the U.S. Constitution, the VP is the president of the Senate which sounds sorta important but, unless there is a tie vote, the veep has no vote. Sort of a paper tiger really, at least as voting is concerned.
But if there is a tie, like some kind of superhero, the veep springs into action and, according to the Constitution, she will have a vote if “they be equally divided.” By the way, the veep has so leapt into action 268 times since 1789.
If both Democratic candidates win in Georgia and are sworn into office on Jan. 6, Vice President Mike Pence will still be veep and, thus, the president of the Senate, at least until noon on Jan. 20. On such authority, Republicans should be able to maintain majority control over the Senate.
At noon on Jan. 20, a new sheriff comes to town. After Kamala Harris has taken the oath of office — and assuming her seat is promptly filled with a Democrat by Gov. Gavin Newsom so the Senate score is 50-50 — the Democrats should be able to maintain majority control.
But here’s the greater head-scratcher: If the Democrats Republicans both have 50, the math is easy here — neither has a majority. As such, who gets to be the majority leader? Will Mitch McConnell and Chuck Schumer be like Chang and Eng and share the leader’s skin?
That disturbing image notwithstanding, here’s the weird stuff.
Unlike in the House of Representatives where the speaker is elected by a majority of votes cast by the full chamber, not so much in the Senate. The Democratic Caucus and the Republican Conference separately select their own leader by their own procedures. The leader of whichever party has a majority of senators will be the majority leader, and the leader of the other party will be the minority leader.
This isn’t a trivial designation as, owing to precedent, the majority leader enjoys the privilege of first recognition on the floor. This is one of the primary mechanisms by which the majority leader actually controls the Senate.
As has been prior practice, in a 50-50 Senate, the leader of the vice president’s party would likely be recognized as majority leader. But notice the word “likely” in the preceding sentence; this is more tradition than anything. In its most recent occurrence, following the 2000 election. Senators Tom Daschle (D-SD) and Trent Lott (R-MS), then Democratic and Republican leaders of the Senate respectively, formed a power-sharing agreement. So there’s that.
I suspect though, in the current unfortunately divided nation in which we live, if the Dems pick up both Georgia seats, you should probably practice saying “Majority Leader Schumer” and, to his great and everlasting pique, “Minority Leader McConnell.”
Only time and the relentless onslaught of red Georgia mud-slinging will ultimately tell. Though Georgia’s on my mind, ain’t it grand to be in Colorado?!
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest, LLC. His practice areas include: business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Mr. Robbins may be reached at 970/926.4461 or at his e-mail address: Rrobbins@CELaw.com. His novels, "How to Raise a Shark (an apocryphal tale)" and "The Stone Minder’s Daughter," are currently available at Amazon.com.
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