December 6, 2011
Democrats filed a lawsuit Monday in Richmond that asks a court to halt Republican plans to assert a controlling majority in the evenly divided state Senate and could clarify a murky area of the Virginia Constitution.
The suit asks the Richmond Circuit Court to prevent Republican Lt. Gov. Bill Bolling, who presides over the Senate, from casting the decisive 21st vote in favor of the GOP when the 40-member Senate organizes next month.
Sen. A. Donald McEachin, D-Henrico, said Bolling can have no say in the legislature's organization because he's in the executive branch of government, his administrative duties over Senate floor sessions notwithstanding.
"The Constitution says the Senate is comprised of 40 members — 33 to 40 members — elected every four years, so clearly the lieutenant governor does not fit that definition," McEachin said.
It specifically asks the court to rule on the lieutenant governor's constitutional authority to vote on three specific areas requiring a majority vote of elected senators: taxes, judicial elections and constitutional amendments; the organization and drafting of the Senate's rules; the confirmation of gubernatorial appointments.
Because the General Assembly convenes in 38 days, the case will have to be expedited with a rapid appeal, if necessary, to the Virginia Supreme Court. If left in limbo, the Senate could be paralyzed — left unable to organize itself — until the judicial branch settles the issue.
Judges historically have been reluctant to weigh in on the organizational and internal workings of an equal branch of government, but McEachin said uncertainty on the issue in the state Constitution revised 40 years ago needs to be resolved.
"Questions like these, that's why we hire them," said McEachin, himself a lawyer.
Republican Sen. Thomas K. Norment of James City County, who would be majority leader should the courts side with the GOP, declined to comment on the lawsuit, said his spokesman, Jeff Ryer.
The Republican Party of Virginia was not so demure, blasting out a news release titled "The Sore Loser Files Suit."
"Having now read the Democrat's lawsuit, I have to say I'm surprised. There are far too many talented lawyers in their caucus for anyone over there to believe that this suit has any chance of success," said state GOP Chairman Pat Mullins.
McEachin, the lone named plaintiff, said Senate Democratic Caucus voted unanimously on Nov. 19 to file the lawsuit. McEachin is represented by the Fairfax firm of Blankenship and Keith.
"I think that what Democrats are saying is that when we are faced with a split chamber, we understand that's what people want and there's a time to share power," McEachin said. "I'd like to think that the Republicans would do so here."
Democrats set a precedent for sharing power in an evenly split 40-member Senate after the 1995 elections when the Republicans achieved parity at 20 seats, McEachin said.
But the Democrats who had ruled the Senate since Reconstruction didn't share power willingly. Democrat Donald Beyer, then the lieutenant governor, intended to vote to keep Democrats in control. They agreed to share power only after conservative Democratic Sen. Virgil Goode of Rocky Mount threatened to side with the Republicans and tip the partisan balance their way.
Goode, who later was elected to Congress, eventually left the Democratic Party, first to become a conservative independent with Republican backing, then a full-fledged Republican. He lost his U.S. House seat in 2008 to Democrat Tom Perriello.
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