Virginia Democrats say they will sue to share control of the state Senate

By Laura Vozzella and Anita Kumar, Published: November 21

RICHMOND — There are those who question the wisdom of Virginia Democrats, who on Monday vowed to sue Republicans for the right to share control of the state Senate.

A.E. Dick Howard is not among them.

Howard is the University of Virginia law professor who in 1996 wrote a legal opinion saying the lieutenant governor has the power to cast a tie-breaking vote on anything before the Senate.

Because this month’s elections left the Senate evenly split between Democrats and Republicans, the GOP has relied on Howard’s analysis to assert that Lt. Gov. Bill Bolling (R) will be able to vote on organizational matters — giving the party control of the chamber and power over its committees.

Howard stands by his 15-year-old legal opinion. But in an interview Monday, he described it not as legal gospel so much as a very educated guess.

“One could easily reason and come out the other way on it,” Howard said. “I certainly don’t pretend it’s the last word.”

A legal scholar who was chief draftsman of the state constitution when it was revamped in 1971, Howard was tapped to help the Senate organize itself in 1996, the only other time the chamber was evenly split.

The lieutenant governor has, by custom and tradition, always cast the tie-breaking vote on ordinary legislation, Howard said. But the Virginia constitution states that some bills — on appropriations, taxes, judges and amending the constitution — require approval by a majority of the members elected to the Senate and House.

“The natural assumption is the lieutenant governor is not elected to the Senate and, therefore, he doesn’t get to vote,” Howard said.

But Howard said he later concluded that the lieutenant governor had unlimited voting authority. He based that not on state case law — there was none — but on the assumption that government won’t work any other way.

“You assume that the framers of the Virginia constitution would not have intended deadlock,” he said. “I decided the answer was not clear but that the better answer would be the lieutenant governor could vote.

“That’s precisely why it’s open to debate. I gave it my best shot.”

That debate could move to court now that Democrats are threatening to sue the GOP for the right to share control. The party announced its intention on Monday but declined to say when it plans to file the suit, what court it will file in or even disclose its attorney.

The dispute leaves control of the chamber in doubt less than two months before the General Assembly returns in January for its 60-day session. Legislators will consider thousands of bills, including the state’s two-year budget and new lines for the state’s 11 congressional districts.

In the meantime, both Sen. Richard L. Saslaw (D-Fairfax) and Sen. Thomas K. Norment Jr. (R-James City) are calling themselves “majority leader.”

Democratic leaders, who initially agreed that Republicans could control the Senate, argue that Bolling’s power is limited and does not extend to organizational matters such as committee appointments.

“My impression is, the lieutenant governor says there’s nothing he can’t vote on,” Saslaw said. “It ought to get settled for all time.”

But Sen. Ryan T. McDougle (Hanover), chairman of the Republican caucus, said a judge cannot wade into the issue because of the separation of powers between branches of government.

“Respected legal experts will tell you this is a nonissue,’’ he said. “This is nothing about nothing.”

Howard’s 1996 legal opinion was never put into use. Democrats, who had 20 senators and the lieutenant governor, intended to rely on it to control the chamber. But Sen. Virgil H. Goode Jr., a Democrat who later switched parties while serving in Congress, would not agree to the reorganization unless Republicans shared power in the chamber. The two parties shared control for four years.

Bolling said he is relying on Howard’s legal opinion as it relates to organizational issues. But he said he does not know whether he can vote on the budget, tax bills, bonds, constitutional amendments and judges. His staff indicated last week that it thought he could, but Bolling said Monday that he is doing more research. “There is conflicting opinions on that,’’ he said. “It is a less settled question.”

Sen. Jill Holtzman Vogel (R-Winchester) called Democrats “desperate” and “sore losers” for threatening a lawsuit, which she predicted would damage them in the public’s eye. “Nobody wants to sit around and navel gaze and talk about stuff that doesn’t matter,’’ she said.

Attorney General Ken Cuccinelli II (R) has been asked for a legal opinion, his office confirmed Monday, but a spokesman declined to comment.

Gov. Robert F. McDonnell (R), on a phone call from India where he was wrapping up an 11-day trade mission, said it was his understanding that “on organizational matters, the lieutenant governor breaks the tie vote.”

But McDonnell pledged to work closely with both parties and suggested that they could work out their differences.

“I will work with Democrats and Republicans to try to get results for Virginia,” he said. “In terms of internal [organization], I think the senators are perfectly able to work those out.”