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The U.S. Constitution states

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

I understand that if a Senator's vote is "Present" then it counts as a "No" in the tally, but what if the Senator doesn't attend the vote. There are votes in the Senate Vote tallys that do not add up to 100 votes, so it has happened in the past.

Vote Counts: YEAs 56
             NAYs 39 
       Not Voting  5

Roll Call Vote 115th Congress - 1st Session

Since this vote is not "equally divided" would the Vice President be able to vote (if it was 49-50).

Has this been under judicial review in the past?

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    What would be the point of the Vice President voting in such a case? If he voted with the majority, it would just become a slightly larger 51-49 majority. If he voted with the minority, it would become an indecisive 50-50 vote -- exactly the type of vote the Vice Presidential vote is supposed to undo. – user4556274 Jul 30 '17 at 19:12
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    @user4556274 And that brings the question: is a 50-49 vote enough to pass a bill? Do you need a majority of Senators present, or a majority of all Senators elected and sworn? – D M Jul 30 '17 at 19:29
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    @DM it's a majority of senators present. Only 51 senators need to be present for a quorum. So a bill could in theory pass with a vote of 26 to 25. – phoog Jul 30 '17 at 19:39
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    Also note that the vote you linked to was a cloture vote, requiring a 3/5 supermajority to pass. The vice president would never vote where a supermajority is required. – phoog Jul 30 '17 at 19:44
  • 'I understand that if a Senator's vote is "Present" then it counts as a "No" in the tally' No, that is not true. See this vote. It is listed as 0-57 with 43 Senators voting Present and 57 voting No. If Present counted as No, it would be 0-100. – Brythan Jul 31 '17 at 0:01
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If a Senator missed a vote (deliberately or not), and all other Senators are present and voting, it would deny the VP the opportunity to break a tie. However, there's no point to deliberately doing this.

Senator supports the measure, Senate is 50-49 without them.

  • If the Senator votes, the final vote would be 51-49. The VP is not needed to break a tie. Senator is happy.
  • If the Senator does not vote, the final vote would be 50-49. The vote passes without their help, and the VP is not needed to break a tie. Senator is happy.

Senator supports the measure, Senate is 49-50 without them.

  • If the Senator votes, the final vote would be 50-50. The VP would break the tie, whichever way the VP chooses. Senator is happy if the VP agrees.
  • If the Senator does not vote, the final vote would be 49-50. The vote fails, and the VP is not needed to break a tie. Senator is sad.

Senator opposes the measure, Senate is 50-49 without them.

  • If the Senator votes, the final vote will be 50-50. The VP would break the tie, whichever way the VP chooses. Senator is happy if the VP agrees.
  • If the Senator does not vote, the final vote would be 50-49. The vote passes, and the VP is not needed to break a tie. Senator is sad.

Senator opposes the measure, Senate is 49-50 without them.

  • If the Senator votes, the final vote will be 49-51. The vote fails, and the VP is not needed to break a tie. Senator is happy.
  • If the Senator does not vote, the final vote would be 49-50. The vote fails, and the VP is not needed to break a tie. Senator is happy.

TL;DR

In other words, choosing not to vote can only make a difference if the VP and Senator agree, and can only result in making the Senator sad. There is no scenario where the Senator is better off by not voting.

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    Ah, Game Theory, our old friend. – Jörg W Mittag Jul 30 '17 at 21:01
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    Unless the Senator not voting means the quorum is missed... while him being there and voting NAY would means it passes (with or without VP tie-breaking). – Deduplicator Jul 30 '17 at 22:44
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    This analysis is redundant. 50-49 supporting = 49-50 opposing, and vice versa. – Matt Samuel Jul 31 '17 at 0:12
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    @MattSamuel It's often worthwhile to prove redundancy by writing/acting out the full set anyway. – Cronax Jul 31 '17 at 9:23
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    I think @Deduplicator has found a missing case. "Senator opposes the measure. Senate is 25-24 without them." If the Senator show ups and votes, then quorum will be obtained and the tie vote will enable the VP to cast the tie-breaking vote in favor (final result 26-25: measure passes and Senator is sad). If the Senator leaves the floor, then there will be no quorum and the vote won't happen. The measure will effectively be defeated. – emory Jul 31 '17 at 18:22
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A US senator cannot guarantee that the vice president won't be able to vote by staying away from the chamber, because there is no way to guarantee that another senator or senators might also refrain from voting, resulting in a 49-49 tie (or indeed any smaller number of votes, evenly split), whereupon the vice president would be able to vote.

The only way a single senator could definitively determine whether the vice president could vote is to be the last senator to vote, when there have been an odd number of votes cast, with one more vote cast one way than the other, or there have been an even number of votes cast, equally split.

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It wouldn't block anything even if they did so.

According to this Wikipedia table, there have been cases where the Vice President has voted when the vote was tied 49-49 (or even as low as 46-46), resulting in a 50-49 (or 47-46) vote which passed the bill. But a bill would also pass if the vote was 50-49 without the VP voting. You need a majority of Senators present, not a majority of total Senators, voting in favor.

If not just one, but all 50 Senators that were against the bill were absent, there could be a lack of quorum (the other 50 Senators would not quite be the "majority" needed, and the Vice President is not a Senator so he doesn't count towards the quorum). But the Senate rules (and Article I Section 5 of the Constitution) say that members may be compelled to attend if a quorum is not present.

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  • The quorum rule is worse than that. If all present "agree" a quorum is present by not challenging the presence of a quorum, they proceed. This has resulted in a 3-0 vote. (The fact that this works is required in a nuclear war scenario so they can't take it out of the rules.) – Joshua Apr 18 '18 at 3:10
  • A quorum is in fact not present if there are 3 out of 100 Senators present; the Constitution is clear that a majority constitutes a quorum. But if the Supreme Court isn't willing to call them on it, probably nobody else would either. – D M Apr 18 '18 at 5:18
  • A single member of the body on the floor at the time would have sufficed to call them on it. – Joshua Apr 18 '18 at 15:09
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Can a U.S. Senator block the Vice President from voting by not attending a vote and having the results be 49-50?

YES, but it won't help their position if they're in favor, or opposed to it and their own vote would split the decision in either case. Either the "non-voting" senator's vote is moot (49-51 / 51-49) or it would split it forcing the VP to vote. Majority wins the day either way. So by not voting he would block the VP from voting but whatever the 50 vote was in a 49-50 or 50-49 vote, it would be the victor. (Hopefully that's what they'd want) In either case, this vote would go to the president's desk for veto or approval. So unless you were trying to save face for the VP by not making his position on a matter public, or your vote wouldn't matter, there's no reason to NEED to "block" the VP's vote. It won't help your cause.

For those asking is 50 enough or is 51 enough, you only need majority to go to the president's desk. If you have 2/3s majority (67 votes of 100) then it won't even grace the president's desk, it'll be considered law after that and in that case the VP wouldn't vote anyway. That's the only way to stop the president from having a decision in the vote.

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    Not quite true - even if it has a 2/3 majority, it still needs to be signed by the President. It just means that if he vetoes it, then it's highly likely that the veto will be overridden. But he could theoretically point out some flaw, veto it because of it, and have that be convincing enough that it doesn't get a supermajority the second time around. This is the issue with the Russia sanctions right now - it passed the Senate 98-2, but Trump still needs to sign it. – Bobson Aug 1 '17 at 3:30

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