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

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.

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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.