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Virginia Democrats suing to share power

GOP fights to keep tiebreaking vote

- The Washington Times - Monday, November 21, 2011

Democrats in Virginia's Senate said Monday that they will file a lawsuit to determine whether the state's Republican lieutenant governor has the privilege of casting tiebreaking votes on organizational matters — an authority crucial to GOP plans to exercise a majority in the evenly split chamber next year.

Republicans, who have dismissed the possibility of sharing power with Senate Democrats, are counting on Lt. Gov. Bill Bolling casting deciding votes on GOP-sponsored bills and other matters, such as the task of approving legislative committees with Republican majorities.

Democrats say the lieutenant governor is not empowered to cast tiebreaking votes on some crucial issues, such as the budget, the appointment of judges and the reorganizing of the Senate.

"The Constitution is very unclear on that," said Senate Majority Leader Richard L. Saslaw, Fairfax Democrat. "It's not just a matter of this year. It ought to get settled for all time — and that's the purpose behind this."

Senate Democratic Caucus Chairman A. Donald McEachin, Henrico Democrat, said Democrats are asking for "simple fairness." In the wake of legislative elections this month that left Democrats and Republicans each with 20 members in the Senate, he is pushing for an equal number of Democrats and Republicans on each Senate committee.

"Republicans are stuck on '20 equals 21,' so we really don't have any other choice but to go to the courts," Mr. McEachin said.

Mr. Bolling's office said it is relying on a legal opinion issued in the 1990s by University of Virginia law professor A.E. Dick Howard, who oversaw the rewriting of the modern state constitution in 1971. That opinion affirms the office's power to break ties on procedural matters, as well as appropriations, budget bills and general bond obligations.

The office of Attorney General Kenneth T. Cuccinelli II confirmed that it had received a request for an opinion on the matter. Spokesman Brian Gottstein said via email that the request falls under attorney-client privilege unless and until Mr. Cuccinelli, a Republican, issues an official legal opinion.

Senate Republican Caucus Chairman Ryan T. McDougle said the lawsuit is unwarranted.

"There is just no role for courts to tell the legislature how to organize," he said. The Hanover Republican likened the situation to courts telling the governor to appoint a certain Cabinet member.

"The State Board of Elections hasn't certified the elections yet. New senators haven't been sworn in," he said. "There's no issue here."

The Senate similarly was split 20-20 during the 1990s, and Donald S. Beyer Jr., the Democratic lieutenant governor, intended to use his tiebreaking vote in much the same way as Mr. Bolling. The plan was abandoned when Sen. Virgil H. Goode Jr., Rocky Mount Democrat, threatened to leave the party if Democrats refused to share power.

Democrats on Monday cited statements from the 1990s to demonstrate their point that power-sharing was the fair thing to do.

For example, The Washington Times reported in January 1996 that Gov. George Allen, a Republican, said the power-sharing pact was "consistent with what [voters] decided on during the election, which was a 20-20 split."

But, unlike 1996, the current GOP caucus has presented a united front.

"It is abundantly clear that we can organize the Republican legislature," Mr. McDougle said. "It's pretty settled."

A majority of elected senators is required for a quorum to do business, giving Democrats the option of simply not showing up, which happened earlier this year when the Wisconsin Legislature was voting on controversial legislation to sharply curb the collective-bargaining power of public-sector unions.

But that's not going to happen, Mr. Saslaw said.

"We will be there," he said. "Inevitably, they had to show up. We're not asking for a lot. We're just asking for what they asked for 16 years ago; nothing more, nothing less."

Gov. Bob McDonnell, a Republican, agreed with his party Monday, while leaving the specifics to the assembly's upper chamber.

"It is 20-20," Mr. McDonnell said on a conference call from New Delhi, where he was completing a two-week trade mission. "But on [organizational] matters in the Virginia Senate, the lieutenant governor breaks the tie vote."

Mr. McDonnell stressed that, as he has done for the past two years, he would continue to work with both Democrats and Republicans on the major issues facing the state but described the issue as "an internal organizing matter for the Senate."

"In terms of the internal workings of the Senate ... I think the senators are perfectly capable of working those out," he said.

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