[EL] Senate rules

[Michael Morley]

Article V of the Constitution provides, "[N]o State, without its consent, shall be deprived of its Equal Suffrage in the Senate."  Although under this recommendation each Senator would formally retain one vote, the effective weight of each vote would depend on the state's population.  I think there's a very strong argument that such a rule would violate this provision of Article V.  Especially under Reynolds v. Sims-type reasoning.  Although each chamber has sole discretion under Article I, Section 5 to establish its own rules, I think there's a reasonable chance the Supreme Court would find a challenge to such a rule justiciable, either by Senators whose votes are devalued, or by people who are adversely impacted by laws that have not been passed by a numerical majority of Senators voting on the issue.

Regarding your second hypo, there's also likely an argument to be made that the Constitution's supermajority requirements for certain Senate actions (i.e., overriding a presidential veto) implicitly require a numerical majority of Senators voting to vote in favor of other constitutionally specified actions, including the passage of legislation.  And so if Senators representing a majority of the population vote to pass a bill, but they did not constitute a numerical majority of Senators voting on the issue, then the bill's purported passage may be invalid under Article I, section 7.

Michael

Michael T. Morley
Assistant Professor of Law
Florida State University College of Law


________________________________
From: Law-election <law-election-bounces at department-lists.uci.edu> on behalf of Gardner, Jim <jgard at buffalo.edu>
Sent: Monday, January 25, 2021 11:55 AM
To: Election Law Listserv <law-election at uci.edu>
Subject: [EL] Senate rules


Sorry if this has been discussed before, but is there any reason why the Senate couldn’t adopt a cloture rule ending a filibuster upon the vote of any number of senators representing, say, a minimum of 40% of the U.S. population?  For that matter, is there a reason the Senate couldn’t adopt a rule providing that no legislation will be deemed approved except upon the vote of a number of senators representing more than 50% of the population?



Jim



___________________________

James A. Gardner

Bridget and Thomas Black SUNY Distinguished Professor of Law

Research Professor of Political Science

University at Buffalo School of Law

The State University of New York

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