Lieutenant governor’s power debated as tie in Senate remains possibility

The long recount in three election districts that could determine control of the constantly squabbli
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The long recount in three election districts that could determine control of the constantly squabbling New York state Senate is raising constitutional questions about the power of the lieutenant governor.

The question is whether the lieutenant governor who presides over the Senate can cast a deciding vote to choose the chamber’s leadership if the Senate is tied with 31 Democratic and 31 Republican senators.

It isn’t clear if Democrat Robert Duffy, the lieutenant governor-elect, will simply be able to vote to continue or halt debate or be able to vote on any critical spending or policy bill.

Senate Republicans insist they will end the recount with a 32-30 majority when the session opens Jan. 1. That would eliminate the Democrats’ 32-30 majority of two years. Three races are still in doubt after the Nov. 2 election — in Westchester, Nassau and Erie counties.

To a large extent, the voting authority of the lieutenant governor hinges on the definition of one word: “procedural.” The state constitution allows the lieutenant governor, who is chosen by the governor, to break ties in the Senate only on “procedural” matters or the selection of its leaders.

Democratic Gov.-elect Andrew Cuomo and Senate Democrats say Senate rules appear to empower the lieutenant governor to break ties. Cuomo hasn’t said whether Duffy would exercise that power.

Scott Reif, spokesman for the Senate Republicans, insists the question is moot because Senate Republicans are confident of having 32 “if not 33” seats in January.

“The Senate constitution makes it clear that the lieutenant governor’s authority to cast a vote in the Senate only applies to settling tie votes on procedural matters — not on substantive matters, such as legislation or resolutions to elect leadership,” Reif said.

Robert B. Ward of the Nelson A. Rockefeller Institute of Government said a lieutenant governor likely could break ties to choose a Senate majority leader and president of the Senate, traditionally the two top jobs chosen by the majority.

“The casting vote exists so legislative business can proceed,” Ward said. “Election of a leader is essential to that.”

He said the state’s highest court would likely agree, based on interpretations to this point.

But “We’ve seen sometimes when things do go to the Court of Appeals, as in the appointment of a lieutenant governor, that the outcome isn’t what we expected,” Ward said.

Last year, Democratic Gov. David Paterson decided — against Albany’s prevailing wisdom — to appoint Richard Ravitch as lieutenant governor. The move was taken partly to end a power dispute that had gridlocked the Senate. Shortly after Paterson made the appointment and won challenges in the Court of Appeals, the dispute ended when Democratic Sen. Pedro Espada Jr. returned to the party fold.

But that exercise took more than a month, including at the critical end of the regular session in the last weeks of June. Hard feelings remained and the Senate acted strictly along party lines on most issues, including budget bills, through the rest of the year.

For Cuomo, there will be a political consideration. If he forces his No. 2 into a powerful position in the Senate, he would alienate Republicans even if he pleases Democrats. And two years of gridlocking partisanship show a governor can’t depend on Democrats to vote in a bloc, as is needed when Republicans vote as one.

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