In Case of a Tie......

(Legislative Deadlock, Tied Chambers)

Most often, you find a legislative chamber controlled by one political party.  In any of the 61 chambers with an even number of seats, however, an equal split may occur.  And tied chambers are more and more frequent. Every even-year election since 1984 has produced at least one deadlocked legislative chamber.

*1997 -  In the Virginia House, the party numbers actually were 50 D, 49 R and 1 I, but the Independent sat with the GOP caucus, tying the chamber.
**  2000 - The Maine Senate has 35 members, so it technically cannot be tied; however the Democratic and Republican caucuses are evenly split, and they negotiated a power sharing agreement.

Just because a legislative chamber faces partisan stalemate, however, doesn’t mean the business of the state comes to a halt.  The chamber still must elect leaders, appoint committees, consider bills and continue other work.  The process just doesn’t always happen according to convention.  Legislators have figured out unique ways to break deadlock over the years.  Here are the common methods of dealing with tied chambers.

Coin toss.  In Wyoming, a coin toss is the preferred method for tie breaking. It was used to determine the winner of individual seats as well as to help untie a chamber in 1974.

Lieutenant governor's vote.  The lieutenant governor presides over the Senate in 25 states.  In all but one of the states, the lieutenant governor is able to break ties.  A lieutenant governor’s vote broke organizational deadlocks in Idaho (1990) and Pennsylvania (1992).  There was speculation that the lieutenant governor would determine party control in the Virginia Senate in 1995, but a power-sharing agreement between the political parties was negotiated instead.

Statute.  Three states passed laws that provide direction when a legislative body ties. In South Dakota and Montana, top chamber leaders are selected from the party of the governor.

After experiencing a partisan split in 1989, the Indiana General Assembly enacted legislation to make sure the House “wouldn’t again be hindered by a tie.”  Now, Indiana statutes provide that the speaker and the principal clerk be chosen by the members of the House affiliated with either the governor’s political party or the party of the secretary of state if the governor was not up for election.  The law was used to organize the House when it deadlocked in 1996.

Negotiated agreement.  Most ties have been settled when the two political parties negotiate a shared power agreement.  The types of agreements have varied.

•  The "co" agreement.  Used by the Washington House (1978, 1998 and 2000), Indiana House (1988), Iowa Senate (2004), Michigan House (1992), Nevada Assembly (1994), New Jersey Senate (2001), North Carolina House (2002), Oklahoma Senate (2006), and Oregon House (2010).  These are power-sharing agreements that added the prefix "co" to leadership and committee chair titles. The dual leaders and committee chairs alternate the times during which they preside.  Indiana, Nevada and Washington alternated daily; Michigan switched every month; and New Jersey changed every two months.
   
•  The divided power contract.  Used by the Arizona Senate (2000), Minnesota House (1978), North Dakota House (1976), Oregon Senate (2002), and Virginia Senate (1995) and House (1997).  These agreements divide the power between the parties.  Under this form of power-sharing, one party selects the presiding officer, the other the chair(s) of the most powerful committee(s); lesser committee chairs alternate party affiliation.  For example, in Minnesota, the speaker of the House was Republican, but the chairmen of the powerful rules, appropriations and tax committees were Democrats.  In the Virginia Senate, a Democratic lieutenant governor presided, the Finance Committee got co-chairs; six committees had Democratic chairs, and four had Republican chairs.  The Virginia House of Delegates elected a Democratic speaker and then adopted a power-sharing agreement.  Under the agreement, 19 House standing committees had co-chairs and equal party representation.  However, if the co-chairs of any standing committee could not agree on how to conduct committee business, a special rule kicks in.  It specified that one party’s chair presided the first year of the biennium, and the other party’s, the second.
   
• The negotiated resignation.  Used by Florida Senate (1992) and Maine Senate (2000).  In Florida, the state constitution reads, "Each house shall...biennially choose its officers including a permanent presiding officer selected from its membership." So when the Senate faced a partisan stalemate in 1992, lawyers and rules experts determined that the constitution's language precluded the use of "co-presidents" in the Senate.  Members agreed that each party would hold the presidency for one year. But to be constitutional, only one could be elected.  So the body elected a Republican president, who tendered an unconditional, irrevocable resignation to take effect 11 months later, and also elected a Democratic president pro tem, who would take over when the time came.  The Maine Senate used a variation on this type of power-sharing.

How have workings of the deadlocked chambers fared?  “Better than expected” is a frequent response when legislators and staff reflect on the situation.  Cooperation rather than confrontation seems to be key to the success of shared power in a chamber, as well as good will and the personalities of the players.  They promote respect for the legislative institution and for each other’s positions.  However, no matter how smooth the process seemed to go, most legislators experienced with chamber deadlock don’t recommend that other legislatures try it.

But with so many even-numbered legislative chambers, deadlocks are likely to continue.  If it happens to your chamber, here’s some advice from those who already have faced a political tie.

• View the situation as a challenge, not a dilemma.  Have the attitude that you are going to make it a success.
   
• Use organizations such as NCSL to find out what other states have faced deadlock and what they’ve done. Then open up lines of communications with those states. If possible, get a mentor in one of them—someone who is willing to help you through the details.
   
• Begin negotiating as soon as possible. The negotiations will take time because this is a very stressful and often traumatic period.  Have more than one person from each caucus on the negotiation team; this helps generate broader support for the final agreement.  Negotiate carefully over the make-up of your committees because they play a very important role in the legislative process. 
   
• Put people who aren’t intensely partisan or ideological in leadership positions.  Cooperation and productivity are more important than who gets the credit for each individual issue.
   
• Establish and maintain good communication; it is the key to avoiding problems. 
   
• Don’t forget a mechanism or an "escape valve" to keep the process moving ahead.  You might need it in case important or critical legislation gets bogged down. 
   
• Let the public know what’s happening.

For more information, contact the Legislative Management Program in the NCSL Denver Office at 303-364-7700.