Lieutenant Governor May Cast Tie-Breaking Vote on Final Passage Under S.D. Const. art. IV, § 5

1. Introduction

In response to a request from Governor Larry Rhoden, the Supreme Court of South Dakota issued an advisory opinion interpreting whether the Lieutenant Governor—while serving as President of the Senate—may cast a tie-breaking vote on the final passage of a bill or joint resolution.

The request arose from a tied Senate vote on SB 25 (17–17, with one excused). Lieutenant Governor Tony Venhuizen cast a tie-breaking vote and declared the bill passed, but the Senate later sustained a point of order challenging that authority and treated the bill as failed (before later reconsideration and passage by majority after amendment). Against this practical backdrop, the Governor asked for a definitive constitutional answer about tie-breaking authority on final passage.

The opinion required the Court to reconcile two provisions: (1) Article III, § 18 (no law passed without assent of a majority of all members elected to each house), and (2) Article IV, § 5 (Lieutenant Governor is president of the senate but has no vote unless senators are equally divided).

2. Summary of the Opinion

The Court answered yes: the South Dakota Constitution empowers the Lieutenant Governor, while serving as President of the Senate, to cast a tie-breaking vote on final passage of a bill or joint resolution when the senators are equally divided. It further stated the Lieutenant Governor may cast a tie-breaking vote “on any matter” when a tie occurs.

Before reaching the merits, the Court held the request presented a proper “solemn occasion” under S.D. Const. art. V, § 5, even though it did not involve the Governor’s executive power.

3. Analysis

3.1 Precedents Cited

• In re Noem (Noem II), 2024 S.D. 11 and In re Daugaard, 2016 S.D. 27: These cases supply the modern framework for advisory opinions under Article V, § 5. The Court relied on them to (a) reaffirm the disjunctive reading of Article V, § 5 (executive-power questions or solemn occasions), and (b) apply the eight-factor “solemn occasion” analysis quoted in Noem II from Daugaard. The Court also repeated Daugaard’s caution that advisory opinions are for the “rarest instances,” quoting In re House Resol. No. 30, 72 N.W. 892 (S.D. 1897).
• In re Janklow (Janklow I), 1999 S.D. 27, In re Janklow (Janklow II), 2000 S.D. 106, and In re Rounds, 2003 S.D. 30: Cited as examples of solemn occasions in which the Court issued advisory opinions on the Governor’s veto power, even though doing so required careful attention to the Legislature’s Article III provisions. These cases supported the idea that examining legislative-branch constitutional provisions does not, by itself, improperly intrude on legislative prerogatives.
• In re Noem (Noem I), 2020 S.D. 58 and In re Noem (Noem II), 2024 S.D. 11: Used to demonstrate the Court’s recent willingness to issue advisory opinions where constitutional questions implicate significant statewide governance concerns and where the Court’s interpretive role (as final arbiter of the Constitution) is central.
• In re Construction of Constitution, 54 N.W. 650 (S.D. 1893) and Matter of Constr. of Article III, Section 5, 464 N.W.2d 825 (S.D. 1991): Invoked by Senate Leadership to argue the Court should avoid interfering with the Senate’s internal administration. The Court distinguished them: the 1893 request effectively sought advice on parliamentary procedure/internal legislative judgment, while the present request asked the Court to construe two constitutional provisions establishing the Lieutenant Governor’s authority—an issue not controlled by internal Senate rules.
• S.D. Auto. Club, Inc. v. Volk, 305 N.W.2d 693 (S.D. 1981): The Court drew on this case for two core propositions: (a) it is the judiciary’s duty, not the Legislature’s, to determine constitutional meaning; and (b) constitutional interpretation requires harmonizing provisions to give effect to the whole instrument.
• Betty Jean Strom Tr. v. SCS Carbon Transp., LLC, 2024 S.D. 48 (quoting McDonald v. City of Chicago, 561 U.S. 742 (2010)): Cited to articulate the interpretive goal of discerning the “most likely public understanding” of constitutional text at adoption.
• Doe v. Nelson, 2004 S.D. 62 and In re Janklow (Janklow I), 1999 S.D. 27: Provide the “natural and obvious sense” / “natural, usual meaning” approach when text is clear and unambiguous.
• Bd. of Regents v. Carter, 228 N.W.2d 621 (1975) and In re McKennan's Est., 126 N.W. 611 (S.D. 1910): Support interpretive canons: harmonize provisions; avoid readings that render language meaningless or “idle.”
• Lewis & Clark Rural Water Sys., Inc. v. Seeba, 2006 S.D. 7 (quoting Martinmaas v. Engelmann, 2000 S.D. 85) and In re Est. of Colombe, 2016 S.D. 62: Used to justify applying the “specific prevails over general” canon—here, Article IV, § 5 is treated as the specific tie-breaking mechanism operating alongside the general majority-assent rule of Article III, § 18.
• In re Est. of Flaws, 2016 S.D. 60: Cited for the rule that courts cannot add constitutional language that “simply is not there,” a principle used to reject atextual limitations on the Lieutenant Governor’s voting power.
• Gilbert v. Flandreau Santee Sioux Tribe, 2006 S.D. 109: Provides the approach of developing autonomous South Dakota constitutional law while still looking to other states for persuasive guidance.
• Persuasive out-of-state authorities on lieutenant governor tie-breaking votes: Advisory Opinion on Constitutionality of 1978 PA 426, 272 N.W.2d 495 (Mich. 1978), Op. of the Justs., 225 A.2d 481 (Del. 1966), State ex rel. Easbey v. Highway Patrol Bd., 372 P.2d 930 (Mont. 1962) (majority view permitting tie-break on final passage); contrasted with Center Bank v. Department of Banking & Finance, 313 N.W.2d 661 (Neb. 1981) (minority view barring tie-break on final passage).

3.2 Legal Reasoning

(A) Jurisdiction / propriety of the advisory opinion. The Court first determined it could answer under the “solemn occasions” prong of Article V, § 5. Applying the eight factors from In re Noem (Noem II) and In re Daugaard, it emphasized: the issue is purely legal; not pending before the Court; of general statewide application; factually undisputed; ripe due to the realistic likelihood of recurrence; and significant for orderly state government. It also stressed that refusing to answer would effectively leave the Senate as the final judge of the Lieutenant Governor’s constitutional authority, contrary to the judiciary’s role described in S.D. Auto. Club, Inc. v. Volk.

(B) Separation of powers and legislative “self-superintendence.” The Senate Leadership argued that answering would intrude upon the Senate’s authority over its proceedings. The Court distinguished In re Construction of Constitution as involving an inquiry into legislative parliamentary procedure. Here, by contrast, the question was the meaning of constitutional text granting (or limiting) authority to a constitutional officer; such authority “cannot be restricted or enlarged” by Senate rules. The Court thus framed the dispute as constitutional interpretation, not a legislative-rule controversy.

(C) Harmonizing Article III, § 18 and Article IV, § 5. On the merits, the Court applied textualism and harmonization canons:

• Article III, § 18 establishes the general rule: passage of law requires assent of a majority of members elected to each house.
• Article IV, § 5 establishes a specific mechanism for the Senate when it is “equally divided”: the Lieutenant Governor may vote.
• Read together, there is no conflict: Article IV, § 5 supplies the means to resolve a tie so the Senate can reach a majority decision in that circumstance.
• The Court rejected implied limitations (e.g., “not on final passage”) because neither provision contains such language, and the Court would not “add” text (citing In re Est. of Flaws).
• The Court also rejected arguments that the “members elected” language necessarily excludes the Lieutenant Governor, noting it would raise collateral problems (e.g., appointed legislators filling vacancies under Article III, § 10 are not “elected” yet unquestionably vote).
• The only condition in Article IV, § 5 is that “the senators be equally divided,” which the Court treated as plain: equal votes for and against among those voting, not counting absences or excusals as “divisions.”

(D) Structural and historical support. The Court reinforced its reading with (i) the historical meaning of “casting vote” (Black’s Law Dictionary (1st ed. 1891)), (ii) the 1972 update to Article IV, § 5 retaining tie-breaking power in modernized language, and (iii) multiple unsuccessful attempts (1974, 1976, 1986) to repeal that voting power—suggesting the tie-breaking authority has been politically contestable but constitutionally persistent. The Court also found the “majority view” from other states persuasive, while noting that some constitutions (e.g., Pennsylvania) expressly carve out final passage, which South Dakota’s does not.

3.3 Impact

• Clarifies legislative outcomes in evenly divided Senates. The opinion reduces uncertainty about whether tied votes on final passage can produce valid enactments when broken by the Lieutenant Governor.
• Limits reliance on internal Senate rulings for constitutional questions. By emphasizing that the Lieutenant Governor’s authority is constitutional and not rule-based, the Court signals that internal parliamentary practice cannot narrow (or expand) constitutionally granted powers.
• Stabilizes separation-of-powers boundaries. The Court draws a workable line: it will not opine on internal “parliamentary procedure” as such, but it will interpret constitutional provisions even when the dispute plays out inside a legislative chamber.
• Future litigation and election-law adjacency. If a law passes due to a lieutenant governor tie-break vote and is challenged later, this opinion will likely be treated as highly persuasive (and potentially controlling) on the constitutional question—though advisory opinions can raise doctrinal questions about binding effect.

4. Complex Concepts Simplified

• Advisory opinion: A formal constitutional interpretation issued without a traditional lawsuit between adverse parties. Under S.D. Const. art. V, § 5, the Governor may request such an opinion on (i) important legal questions in exercising executive power or (ii) “solemn occasions.”
• Solemn occasion (the eight-factor test): A prudential screening tool (from In re Noem (Noem II)/In re Daugaard) used to decide when it is appropriate to answer outside ordinary litigation—focusing on importance, ripeness, urgency, impact, lack of pending case, and similar concerns.
• Final passage: The definitive legislative vote to pass a bill in a chamber (as opposed to procedural votes such as motions, amendments, or scheduling).
• “Assent of a majority of all the members elected” (Article III, § 18): A general constitutional requirement that each chamber must approve legislation by a majority, reflecting bicameralism and democratic accountability.
• Lieutenant Governor’s “casting” (tie-breaking) vote: A vote used only when the chamber is evenly split. The Court interpreted Article IV, § 5 to apply to any tied vote, including final passage.
• Harmonization canon: A method of reading constitutional text so provisions work together rather than conflict, giving effect to all language where possible (citing S.D. Auto. Club, Inc. v. Volk and Bd. of Regents v. Carter).
• “Specific over general” canon: When two provisions touch the same subject, the more specific one controls the particular scenario (applied here to treat Article IV, § 5 as the tie-specific rule alongside Article III, § 18’s general majority requirement).

5. Conclusion

2026 S.D. 7 establishes a clear constitutional rule in South Dakota: when the Senate is equally divided, the Lieutenant Governor—acting as President of the Senate—may cast a tie-breaking vote, including on the final passage of legislation. The Court reached this conclusion by (1) accepting the request as a proper “solemn occasion,” (2) distinguishing internal legislative procedure disputes from constitutional interpretation, (3) harmonizing Article III, § 18 with Article IV, § 5 using established interpretive canons, and (4) rejecting any atextual limitation on the Lieutenant Governor’s vote.

The opinion’s broader significance lies in reinforcing the judiciary’s role as final interpreter of constitutional meaning while providing operational certainty for a closely divided Senate—where tie votes, and the Lieutenant Governor’s role in resolving them, can determine whether legislation advances or fails.