Tie breaking in general election for president in U.S

Question

Suppose the electoral votes for President and Vice-President both ties (as happened in the show VEEP season 5 episode 10), according to Amendment XII of the Constitution, the House vote for President from the list of top three voted President candidates, and the senate vote for VP from the top two voted VP candidates.

According to Amendment XX Section 3 of the Constitution, the new VP will act as President, if the house cannot make decision at the time of the beginning of the next term of presidency.

My question is that if the senate vote for VP and ties again, can current VP vote to break the tie?

As mentioned in this article,

If the senate has failed to break a 50-50 tie for vice president, the Presidential Succession Act of 1947 specifies that the speaker of the House will serve as acting president until tie votes in both the House and Senate have been broken.

But I checked the Presidential Succession Act of 1947,

If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.

My question here is whether the end of the term of presidency is a kind of removal from office so that this article applies?

Answer 1

The short answer is that the Vice-President does not get to cast any vote in case the Senate has to elect the Vice-President. My full answer is below.

In order to confirm my answer, I wrote an email to the United States National Archives and Records, which maintains the website The US Electoral College, including the page Presidential Election Laws, and received this response (emphasis mine; words in brackets original to the email):

A Vice-President voting to break a tie in a legislative vote under Article I is still voting as Vice-President, not as Senator.

The 12th amendment says that a "majority of the whole number [of Senators] shall be necessary [to elect the Vice-President]."

The 12th amendment affects Article II, not Article I, and only specifies a vote by Senator.

If you have more specific questions about Senate procedure, you'll need to contact the Office of the Secretary of the Senate.

From:

Legal Affairs and Policy Division
Office of the Federal Register
National Archives and Records Administration

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Original answer:

My question is that if the senate vote for VP and ties again, can current VP vote to break the tie?

No. The Vice President does not get to cast any vote, including a tie-breaking vote, in the Senate's election for that same office of vice president!

Read the XIIth amendment:

The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice.

Note well: a majority of the whole number [of Senators] shall be necessary to a choice.

It is the Senate of the new Congress that would elect the vice-president. Although the Vice-President is acting as the president of the Senate, the Constitution does not give him/her the right to cast a tie-breaking vote on this occasion.

Notice again the wording of the ThoughtCo quote:

If the Senate has failed to break a 50-50 tie for vice president, the Presidential Succession Act of 1947 specifies that the Speaker of the House will serve as acting president until tie votes in both the House and Senate have been broken.

Notice "50-50 tie." This clearly refers to the full Senate voting and tying 50-50. There is no mention of any tie-breaking vote by the VP because he or she does not cast a vote in this situation.

And that, fortunately, makes sense, because if the incumbent VP was one of the two VP candidates who tied in the electoral college vote, then it should not devolve upon him/her to cast a vote for himself/herself in order to break the tie-vote of the Senate.

(Last, the fictionalized TV show VEEP is wrong on several points regarding the whole electoral tie thing: NB that if the House doesn't successfully decide upon a president on the first vote, the House keeps on voting until it does get a majority vote. In 1800 it took 36 ballots before the House voted for Thomas Jefferson; of course that was pre-XIIth amendment, but the XIIth didn't change anything in that regard-its change was that electors no longer cast two votes for president but rather they now cast one for president and one for vice-president.)

Answer 2

Nearly all edge cases in the line of succession are accounted for. The particular scenario you describe (a tied House and Senate) is extremely unlikely. Congress is required to meet before the end of the incumbent President's term to count the electoral votes (and vote if no candidates earned a majority). This means that at the time of their meeting the incumbent VP is still President of the Senate and still has the tie-breaking privileges laid out in Article I Section 3:

The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.

Hence making a tie in the VP vote in the Senate nearly impossible.

There are a couple of edge cases that I can think of in which a tie in the Senate could occur. In the event that one of these (highly unlikely) scenarios were to occur and the House or Senate remained deadlocked past the end of the incumbent president's term then the Speaker could assume the presidency (per the Succession Act of 1947). It is the failure to qualify language that would allow this. If no presidential candidate receives a majority of electoral votes or a majority vote in the House, and no VP candidate was chosen by the Senate then nobody has qualified for those offices.

If, by reason of death, resignation, removal from office, inability, or failure to qualify, there is neither a President nor Vice President to discharge the powers and duties of the office of President, then the Speaker of the House of Representatives shall, upon his resignation as Speaker and as Representative in Congress, act as President.

These are the two scenarios I could think of that could cause a tie in the Senate:

There is no VP at the time the Senate convenes for the VP vote, thus no tie-breaker vote.

This could happen due to resignation, assassination, or other unforeseen circumstance. In this case if they are unable to break a tie in both the Senate and House before the end of the incumbent President's term than the Speaker could assume the presidency.

The Senate is unable to convene before the end of the incumbent's term.

Even though they are constitutionally mandated to convene before the end of the term there is always the possibility that the 2/3 quorum required by the constitution could not be assembled in time. This could be caused by war, political unrest, whatever. If by the time the quorum finally convenes and the incumbent's term has ended then there again wouldn't be a VP to break the tie vote and the Speaker could assume the presidency. Though in the case of war or political unrest he/she likely would have assumed the presidency the day the incumbent's term ended.