The gap in the Republican conference left by Joe Bruno’s resignation has led some Democrats to jokingly refer to the GOP lead as the “Senate Plurality” rather than the “Senate Majority.”

But, according to some who have consulted the rules, the consequences of Bruno’s resignation may be much more than a joke as the Senate prepares to head back into session Aug. 8 and again on Aug. 19.

In most cases, Senate rules require a majority “of all the senators elected” for anything to pass. With 62 Senate seats, a majority of all senators elected would be half plus one, or 32 votes—regardless of vacancies or absences that exist on the day of the vote.

Eric Lane, a former chief counsel to the Senate minority conference who is now a professor of public law and public service at Hofstra University, said Senate Democrats have a very strong case to be made, if they choose to, on this point.

“If there’s 62 members, you definitely need 32 to pass a bill. Now the question becomes: if there’s a vacancy, does that reduce the number? I’d say no,” he said. “I think you need a majority of the whole number to pass legislation. They’re going to say that the whole number is now 61 not 62. I think it’s a very good argument.”

According to State Sen. Eric Schneiderman (D-Manhattan/Bronx), a former deputy minority leader and floor manager, this gives Democrats the ability to take advantage of the rules of the chamber to help prevent certain action by the Senate Republicans.

“It raises the possibility that there could be procedural challenges to the way they conduct business that could be very difficult for them to resolve,” he said.

With legislators focused on trying to find common ground in coping with the budget crisis, Schneiderman downplayed the possibility that Democrats will employ this tactic. Plus, he added, he and many other Senate Democrats feel confident enough in their chances to take the majority outright in the November elections that they are unlikely to pursue this tactic.  

But if need be, Schneiderman insisted, the technicality prompted by Bruno’s resignation may well be the Democrats’ ace in the hole.

“I don’t think we’re going to be a lot of diverted energy on this issue,” he said, “but if we do get engaged in more serious issues in this special session it may be a problem for them.”

This will mean that whatever agreements are made in the special sessions ahead in August will not just have to carry the bipartisan support of Gov. David Paterson, Assembly Speaker Sheldon Silver (D-Manhattan) and Majority Leader Dean Skelos (R-Nassau), but will also have to carry the support of at least one Senate Democrat as well.

“I’m sure they will reach out to our conference leader and do what has to be done,” Schneiderman said. “We’re facing very difficult decisions relating to the budget and the state’s financial crisis and we certainly want to be cooperative to any efforts to really deal with the problems, but the Republican plurality has to be more inclusive than the Republican majority might have been.”

Schneiderman said that with the conference back in their home districts since the regular session ended in late June, there have not been any in-depth discussions of how to take advantage of the odd situation created by Bruno’s resignation and the particular Senate rules. But Schneiderman expects that this will be on Democrats minds as the senators prepare for session next week.

“I’m sure we’ll be talking about it,” he said.

According to Lane, any Senate Democrat looking to cause problems for a bill passed with only 31 votes would need only to make a floor motion to challenge the validity of the vote. This would likely result in a complex rules debate, and could ultimately require litigation to resolve the dispute.

Lane recommended that Gov. David Paterson (D) and Attorney General Andrew Cuomo (D) quickly move to consider the potential problem and issue decisions on what to do before the Senate begins casting new votes on laws.

“The governor’s office has got to pay attention to this because they can’t send laws out that are questionable,” he said. “Constitutionally, they cannot allow a law to get passed without having an opinion from the governor and the attorney general about the 31 votes.”