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
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?