I’ve been thinking about this one for a couple days, and the most recent Capitol Notes podcast just brought it up, as reflected in John Myers’ Twitter feed. First, the equation:
2/3 of 39 = 26.
See, right now there are 39 State Senators. Mark Ridley-Thomas’ seat is vacant until a special election. Under 2/3 rules, a full Senate would need 27 votes to pass a budget or a tax increase. The state Constitution requires 2/3 of “the membership” for passage, which is very consistent throughout the document. Percentages of “the membership” is always the language. Here’s an example:
(d) No bill except the budget bill may contain more than one item of appropriation, and that for one certain, expressed purpose. Appropriations from the General Fund of the State, except appropriations for the public schools, are void unless passed in each house by rollcall vote entered in the journal, two-thirds of the membership concurring.
And if “the membership” is defined as the current membership, then only 26 votes are necessary in the State Senate as currently composed.
So is it really the case that the legislature sat through marathon weekend sessions with still no resolution because everybody forgot to do the math? Can that really be?
I think Steinberg might as well send the parts of the bill with 26 votes to the Assembly or to the Governor for signage, and if anyone pouts about it we can go to court. The originalist interpretation is clearly that just 26 votes are needed.
Update by Robert: Unfortunately this may not be workable according to Article IV Section 2(a) of the Constitution:
The Senate has a membership of 40 Senators
I too liked the idea of pushing 26 votes, but the Constitution seems clear on defining “membership” as 40.
Update by Dave: Robert’s argument is compelling, but Anthony York’s article cites a law professor who says it’s not entirely clear.
Article IV, Section 2 of the Constitution says the “Senate has a membership of 40 Senators…”
But if there is a vacancy, does that change the membership for legal purposes?
“It certainly isn’t out of the realm of possibilty that would be considered a valid interpretation of Article IV,” said Floyd Feeney, a law professor at U.C. Davis. “Courts make interpretations like that every day of the week.”
Feeney said he was not sure if there were other provisions in state law that might contradict, or supplement, the language in that section of the Constitution.
“Clearly, I’d want to do a lot more research before I sign an advice letter on something like that,” he said. “But there certainly would be an argument.”
Of course, getting this adjudicated would likely take longer than even this interminable process….