From: A Reader
To: Seth Barrett Tillman [via Jurist]
January 1, 2021
I read the November 30 post by Seth Tillman with interest. I’d be interested in his view as to whether his conclusion—that Kamala Harris can simultaneously serve as both a Senator and the VP—is undercut by the incongruous prospect of her being able to vote twice on the same measure: once as Senator and, if a tie ensues, a second time as VP/President of the Senate. I’m not aware of any legislative body in which one individual has two votes on the same measure, and I can’t imagine the Founders were either, or would’ve intended such a result.
From: Seth Barrett Tillman
To: A Reader
January 3, 2021
The presiding officer of an Anglo-American legislative house abstains from voting in most circumstances, but has a right to vote as any other member, and is sometimes required to break a tie. Beyond that, practices varied in the past, as they still do across elected and appointed assemblies.
For a discussion of the disparate practice circa 1788 in U.S. states, see: William Smith, A Comparative View of the Constitutions of the Several States with Each Other, and with that of the United States (Philadelphia, John Thompson 1796). For example: ibid. at tbl.1 & n.n (“CONNECTICUT, [Governed under the] Old Colonial Charter of Charles II [of 1662]. unaltered, except where necessary to adapt it to the Independence of the United States . . . . Governor, as Presid[ent] of the council, and the Speaker of the House, have each a vote [as a member], besides a casting vote [as the presiding officer].”). For a more modern resource, see: Margaret A. Banks, The Chair’s Casting Vote: Some Inconsistencies and Problems, 16 U.W. Ont. L. Rev. 197 (1977).
One of the most famous of such famous incidents involved NY’s [royal] Governor Cosby and Councillor/President [Rip] Van Dam. See John F. Burns, Controversies Between Royal Governors and Their Assemblies in the Northern American Colonies 320 (1923) (“[Prior to 1733, Governor] Cosby [of New York] took part in the deliberations of the Council while acting in a legislative capacity. Thus as a member [!] of the Council he had one vote, as executive he had final veto power, and in case of tie he cast the deciding ballot. Always two, and sometimes three, votes were at his command.”). You can find the primary documents on the Cosby-Van Dam dispute, which was the genesis of the celebrated John Peter Zenger trial, here: 6 Documents Relative to the Colonial History of the State of New York 39–45 (E.B. O’Callaghan ed., Albany, Weed, Parsons and Co. 1855). The legal issues you raise were at the heart of the Zenger trial. Zenger was if not the most famous, at least, one of the most significant pre-1763 trials in the British New World colonies. Thus it seems likely that lawyers and the educated lay public circa 1788 would have been aware of Anglo-American legislative bodies permitting multiple voting in, at least, certain specific circumstances.
You wrote that you cannot “imagine” that the Founders were aware of legislatures where “one individual has two [or more] votes on the same measure”. You might reconsider your position—or, read my publications touching on the subject. They are all on Westlaw and posted on SSRN (for free and easy access). [See, e.g., Seth Barrett Tillman, Interpreting Precise Constitutional Text: The Argument for a “New” Interpretation of the Incompatibility Clause, the Removal & Disqualification Clause, and the Religious Test Clause–A Response to Professor Josh Chafetz’s Impeachment & Assassination, 61 Clev. St. L. Rev. 285 (2013).]
Seth Barrett Tillman, Lecturer*
*Seth Barrett Tillman, One Hidden Cost of Lockdown: How Some Spent New Year’s Day, New Reform Club (Jan. 3, 2021, 7:17 PM), <https://reformclub.blogspot.com/2021/01/one-hidden-cost-of-lockdown-how-some.html>;
Seth Barrett Tillman, Senator and Vice President of the United States: Can Kamala Harris Hold Both Positions at the Same Time?, Jurist–Academic Commentary, Nov. 30, 2020, 5:46:13 PM, <https://www.jurist.org/commentary/2020/11/seth-barrett-tillman-kamala-harris-vp-senator/>, <http://ssrn.com/abstract=3737188>;
See also Seth Barrett Tillman, Member of the House of Representatives and Vice President of the US: Can Paul Ryan Hold Both Positions at the Same Time?, Jurist–Forum, Aug. 23, 2012, <http://jurist.org/forum/2012/08/seth-barrett-tillman-vice-presidency.php>; <https://www.jurist.org/commentary/2012/08/seth-barrett-tillman-vice-presidency/>, <http://ssrn.com/abstract=2129812>;
Cf. Cosby v. Van Dam, 1733, Historical Society of the NY Courts (last visited Jan. 7, 2021), <https://history.nycourts.gov/case/cosby-v-van-dam/>;