What if the vote on witnesses is a tie?

Yes, I know that as of last night, Chuck Schumer was saying that he doesn’t believe he has enough Republican votes in the Senate to allow witnesses to be called and new evidence admitted in the impeachment trial. And Cocaine Mitch is looking more and more confident that he can keep enough of his caucus inside the corral to make sure it doesn’t happen. But nothing is written in stone until the vote actually takes place once the Q&A portion of the trial is complete.

The Democrats would need four GOP votes to make it happen, getting them to 51. But what if they get three? That splits the chamber in a 50-50 tie and we’re into some uncharted territory, though not everyone agrees with that description. The smart money seems to be on the belief that Chief Justice John Roberts won’t step in to break the tie, but the smart money has been wrong before. (Politico)

Ahead of a tight vote on whether to hear new witnesses in President Donald Trump’s impeachment trial, the Senate is preparing for the possibility that this crucial roll call has an asterisk in the history books: It ends in a tie.

And it’s a scenario that would suddenly put a spotlight on Chief Justice John Roberts.

For weeks, Republicans and Democrats alike have been confident that Roberts would not break a tie vote during Trump’s impeachment trial, citing past precedent, the Constitution and their own gut feelings about how it would play in a polarized nation…

“That is a great unknown. There’s no way to know procedurally what he would do. Or if he’ll do” anything, said Sen. James Lankford (R-Okla.).

We discussed this question previously and the rather sparse precedent for opinions on either side. The Constitution doesn’t specifically say that the Chief Justice can break ties as part of his role in “presiding” over the trial, but it also doesn’t say that he can’t. (In fact, the Constitution doesn’t provide much of anything in the way of details.)

As previously discussed, the only actual precedent we have comes to us from the impeachment trial of Andrew Johnson. At that time, Chief Justice Salmon P. Chase broke two ties regarding procedural matters by casting a vote. But does that really settle the matter? That’s up for debate because one of those votes was on the question as to whether or not he could vote to break ties. In other words, he cast a vote before it had been determined that he was entitled to cast a vote.

Not for nothing, but isn’t this something that the Senate could have voted on during the first two days when they were establishing the rules? At least then it would already be out of the way and I get the impression that Roberts would go along with whatever the Senators decided. After all, the Constitution does give them the right to make their own rules of conduct. But even on that issue, there have been doubts raised. While everyone agrees that they can make their own rules, are their rules binding on someone from the Judicial branch?

Given his past conduct and desire to not make the Supreme Court look overtly political, I’m guessing that Roberts would prefer not to have to cast a tiebreaking vote. With that in mind, he’s probably hoping that they spare him the trouble and just come up with 51 votes no matter which way the decision goes.

The only other question that doesn’t seem to have been resolved is that of whether or not Mike Pence could come down and break the tie. Remember that the Constitution only states that “The Vice President of the United States shall be President of the Senate, but shall have no vote, unless they be equally divided.” It doesn’t say anything about that rule being suspended during an impeachment trial. But the counter-argument there is that the VP has to be sitting and presiding over the Senate to exercise that power, replacing whoever the Senate President pro tempore was. At the moment, John Roberts is “presiding” over the Senate, if you follow that line of thinking.

If both Schumer and McConnell are correct in their estimations, it shouldn’t come to this and the witness vote will fail. But either Murkowski or Lamar Alexander could still screw things up. In that case, John Roberts will be put in a position where he’ll be making history whether he likes it or not.