Should Senate remain divided with 31 lawmakers conferencing the with the Senate GOP, 26 with the Democrats and four independent Democrats, a constitutional crisis could erupt over the election of a Senate president.

Here’s what the scene could look like come Jan. 9, the first scheduled of the legislative session:

Two Senate races in the 46th and 41st remain unresolved as the absentee and paper ballot counts slog on. As a result, the Senate has only 61 out of 63 members.

Republicans, as suggested by Democrats over the last several weeks, hold a leadership vote with only 31 members.

But that move will almost certainly be challenged by Democrats if it comes to that.

The Senate Democrats point to the section of the state’s constitution they say backs them up on what a quorum actually is.

The constitution is, unfortunately, a bit vague on the matter:

A majority of each house shall constitute a quorum to do business. Each house shall determine the rules of its own proceedings, and be the judge of the elections, returns and qualifications of its own members; shall choose its own officers; and the senate shall choose a temporary president and the assembly shall choose a speaker.

Does this mean that the Senate’s quorum is a majority of members seated? Or is it a majority of overall members regardless of their status?

Updated: Last year, the Republican-led Senate changed its rules that took away the lieutenant governor’s tie-breaking vote for any leadership elections. However, the rules also stipulated this (emphasis mine): The Senate shall be the judge of the elections, returns and qualifications of its own members and the Senate shall choose a Temporary President, by resolution adopted upon the vote of a majority of the members of the Senate elected

Still, does that mean those rules carry over into 2013?

Senate Democrats point to the latter.

“We believe the Republicans are certainly trying to take this dangerous approach,” said Senate Democratic spokesman Mike Murphy. “Obviously, this would be challenged leading to more Republican created chaos and dysfunction, similar to what happened during the Republican-inspired coup.”

And Sen. Liz Kruger says in a statement released a statement calling the move a “coup by recount.”

“Even I did not think the Senate Republicans were capable of this level of contempt for democracy. But in addition to respect for the voters, every legislator, in both parties, should find this plot unacceptable for a far more practical reason: it virtually guarantees mayhem in the middle of the legislative session – probably during budget season.

It’s also unclear if the Senate president pro temp, a position that’s actually in the state constitution unlike the majority leader job, can be elected with 31 members. If a rules change is needed to allow that, such a move would likely be needed to be done on the floor of the Senate. A quorum would be needed for that, too.

Should the GOP try such a leadership maneuver, it would almost certainly be challenged in court.

As Liz noted in her previous post about the constitutionality of the Senate presidency, such a job is required to be filled.

The outliers, of course, are the four-member Independent Democratic Conference, whose members say they can form a coalition government with each conference have a leader and some sway in the decision-making in the Senate.

IDC leader Jeff Klein has vowed not elect a Republican leader of the chamber.