The inexplicable difficulty of picking state legislative leaders—and why it matters
The high drama over the next Speaker of the Pennsylvania House of Representatives was inevitable.
As the dust settled after the 2022 midterm elections, one of the surprising outcomes—beyond, of course, the absence of the much-awaited Red Wave—was the downballot strength of Democrats in state legislative races. Not only did Republicans flip a paltry 22 state legislative seats nationwide, but Democrats managed to flip the Michigan House, Michigan Senate, Minnesota Senate, and Pennsylvania House, too.
Or perhaps not the Pennsylvania House. 102 Democratic candidates won State House elections, compared to 101 Republican candidates, which theoretically queued up a narrow, 102-101 Democratic majority—but maybe not for a few more months. One of the Democratic candidates, State Representative Anthony DeLuca, died prior to the election and couldn’t be replaced on the ballot. Two other Democratic state legislators—Austin Davis and Summer Lee—were elected as Lieutenant Governor and to Congress, respectively. Their anticipated resignations theoretically left Democrats with a slight deficit. In anticipation of these vacancies, Joanna McClinton, the leader of the House Democrats, asserted that Democrats had won a majority in the House and that she was, therefore, the rightful Majority Leader. Outgoing State House Speaker Bryan Cutler has contested McClinton’s claim to leadership, and the nonpartisan Legislative Reference Bureau has stepped in to issue an opinion stating that neither party had a majority.
The determination of which party has a majority (and therefore, which party leader is the rightful Majority Leader or Speaker) isn’t just a partisan squabble. Democrats are likely to gain control of the House once the special elections to fill the vacancies in DeLuca’s, Daniels’s, and Lee’s seats are held—it’s just a question of when. Accordingly, McClinton scheduled special elections to fill the three state legislative vacancies for February—the earliest possible time she could. Cutler, in turn, scheduled special elections for May—the latest possible time he could, and challenged the legality of McClinton’s actions in state court. Separately, the Department of State announced that it would proceed with the February special elections.
Though it’s unlikely that sweeping policy changes are on the horizon—with a Republican majority in the State Senate and Democrat Josh Shapiro as Governor, two more years of divided government seems likely—the legislature does have the power to place constitutional amendments on the ballot without the Governor’s approval.
In Pennsylvania, constitutional amendments must be approved at two successive legislative sessions to be placed on the ballot. The previous Republican majority in the state legislature passed a host of controversial amendments for the first time in the 2021-22 legislative session—restricting abortion rights, tightening voter-identification requirements, and increasing the legislature’s power to review administrative regulations, just to name a few. If these amendments are approved again in the 2023-24 legislative session, they could appear on the ballot soon. (A small caveat: outgoing Democratic Governor Tom Wolf has challenged the legality of the process by which these amendments were approved, and has alleged that the abortion amendment violates the state constitution’s separate-amendment requirement—but the outcome of that litigation is unclear.)
The dueling between Cutler and McClinton, therefore, is really a proxy for whether the constitutional amendments will be submitted to voters sometime in the next two years. If the state legislative elections are held in February, and Republicans only hold the State House for a few weeks, Democrats may be able hold off the constitutional amendments. The amendments only narrowly passed in the previous session, with several moderate Republicans voting against them. But if Democrats don’t win control of the State House until May, the amendments might end up on the ballot—with Democrats powerless to do anything to stop them.
So the stakes are pretty high! Why, then, haven’t I endeavored to answer the question of whether Cutler or McClinton has the more viable claim to leadership? I haven’t cited any law, discussed at length any court decisions, or even evaluated how the rules of the State House speak to this dispute. Given how high the stakes are here, that seems like a pretty weird omission on my part.
The reason is disconcerting—it’s because there isn’t very much law to speak of here. The Pennsylvania Constitution merely provides that “[t]he House of Representatives shall elect one of its members as Speaker.” State law doesn’t add any helpful detail. The State House’s General Operating Rules don’t, either. And though the opinion of the Legislative Reference Bureau helpfully walks through the available caselaw, there simply isn’t much that’s directly applicable here. So how this dispute will be resolved by state courts is unclear.
To make matters worse, it’s not as though Pennsylvania is somehow unique in saying very little about the mechanical process by which its state legislative leaders are elected. Most states lack explicit mechanisms for picking the presiding officers of their state legislatures. Though most state constitutions make clear that each state legislative chamber elects its own officers, there’s little said beyond that.
The lack of clarification can have a significant effect on how power is distributed. Sixty-eight out of ninety-nine state legislative chambers have an even number of legislators, queuing up the very real possibility that the two parties deadlock and no one party has control. While the inability to elect a presiding officer may seem small and technical, it affects every other aspect of how the chamber is organized. Committees can’t be organized, which means that bills can’t be heard and the chamber can’t pass legislation. It’s a recipe for gridlock.
The structure of some state governments has served to partially resolve these disputes. Similar to how the Vice President serves as President of the U.S. Senate, many states have designated their lieutenant governor as president of their state senate with a tie-breaking (or “casting”) vote. Just as Vice President Kamala Harris broke the 50-50 tie in Democrats’ favor in the U.S. Senate from 2021 to 2023, many lieutenant governors do the same in state senates when the parties are deadlocked. Indeed, in the nineteenth century, as lieutenant governors became more widespread (as I wrote about here), the lieutenant governor’s role in helping to organize the state senate was occasionally a reason for creating the office. One delegate to the 1850-51 Ohio Constitutional Convention noted that the state government “shall be complete . . . by the creation of the office of Lieutenant Governor”:
Even looked at in the light of economy, if [the other delegates] would cast their eyes back a few months ago, they would see the loss they have suffered in consequence of not having a presiding officer. If they had had such an officer the winter when the Senate stood 18 to 18, the difficulty which took place at that time, would have been obviated.
But following state court litigation about the circumstances in which the lieutenant governor can exercise that tie-breaking vote, there’s been a noticeable trend of states removing their lieutenant governor from the senate presidency. In any event, the lieutenant governor’s role still leaves many questions unanswered—it obviously has no effect for how the speaker of a state house is selected, for example.
So how else do states resolve ties in their legislatures?
A handful of states have set special rules for picking state legislative leaders when there are an equal number of state legislators from both parties. In Montana, when either chamber is deadlocked, the Governor’s party is given control. The same rule applies in South Dakota with respect to the State House. Indiana bases control on which party won the most recent election for Governor or Secretary of State (this distinction arises because gubernatorial elections take place in presidential years and Secretary of State elections in midterm years).
But most states have no procedure for resolving ties in the state legislature. In the absence of an explicit process, the far more common approach has been an informal, negotiated power-sharing agreement between the leaders of the two parties. Though the details of these agreements vary, a typical approach involves the parties agreeing on a single presiding officer and split control of committees—though some agreements have produced co-presiding officers, like when the Oregon House of Representatives was deadlocked from 2011 to 2013. But note that there’s nothing in state law itself that demands a power-sharing agreement.
Given this reality, the dispute over how the Pennsylvania House of Representatives will be organized was inevitable. It’s also deeply unfortunate that a power struggle with such high stakes will be resolved based on the randomness of three state legislative vacancies and how they’ll be filled. (This is one of the reasons, for example, that I’m a huge advocate of using same-party replacements to fill state legislative vacancies.)
I’ll be closely following how the drama in Pennsylvania will ultimately be resolved. But it’s important to note that this is a crisis of the legislature’s own making. In the future, such a dispute could absolutely be avoided—in Pennsylvania, yes, but in other states as well. Legislatures can streamline the process for filling state legislative vacancies, for example, by using same-party replacements instead of special elections, guaranteeing an immediate replacement of the same party as the previous legislator. State legislatures can also adopt specific rules governing how their presiding officers are elected—either as internal rules or as modifications to statutes. In states with the initiative process, voters have agency here, too, and can propose these (or other) changes themselves.
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