So even if the Democrat prevailed in court, it would be hard for the judge, who raised separation-of-powers concerns when denying the injunction request, to find a good post-session remedy, said A.E. Dick Howard, a constitutional law expert at the University of Virginia.
“Courts are disinclined to take action where it would invalidate an entire legislative session,” he said. “I can’t think of any precedent for that.”
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But an after-the-fact court victory could, Howard said, bring about power-sharing for the remaining three years of the Senate term.
Unable to count on the courts, Democrats have been studying obscure legislative maneuvers that could block Bolling votes. Anticipating that, Republicans have had their noses in parliamentary rule books as well.
Both sides have dug so deeply into the nitty-gritty of procedure that they’ve found themselves puzzling over questions such as, “What rules does the Senate operate under when it is adopting its rules?” Rules from the last session? “Robert’s Rules of Order”? Jefferson’s “A Manual of Parliamentary Practice”?
None of the above, said Susan Schaar, clerk of the Senate. She said it’s “general parliamentary procedure,” which, as it happens, is not written down.
One maneuver Democrats have considered: If Bolling votes on organization, a Democrat would stand and declare, “Mr. President, I challenge the ruling of the chair.” That would force the Senate to consider, as a point of order, the propriety of his vote.
As the subject of the challenge, Bolling would have to recuse himself, so a motion to uphold his right to vote would fail on a 20-20 party-line vote, Democrats theorize. Yet Republicans are just as certain that Bolling need not recuse himself, a view Schaar shares.
Even amid all the strategizing, some Democrats were slowly adjusting to the idea that they’ve lost control of the chamber they’ve ruled since 2008.
After the election, Richard L. Saslaw (D-Fairfax) and Thomas K. Norment (R-James City) claimed to be Senate majority leader. Saslaw said last week that he’ll drop the title, but insisted that Norment, who did not return calls seeking comment, should, too.
“Nobody’s the majority leader when there is 20-20,’’ Saslaw said.
Bolling conceded in a statement last week that he lacks the power to vote on some matters, including the budget. That’s because the Virginia constitution specifies that only “members elected” to the Senate may do so.
But Bolling reasserted his right to vote on organization, an issue on which the constitution is silent. Even some Democrats think that Bolling is on firmer ground on organization than he was with the budget.
“That’s sort of a gray area,” said Sen. Phillip P. Puckett (D-Russell). “He may be right.”
Bolling’s decision to bow out of budget votes could give the Democrats new leverage for power-sharing, since Republicans will need at least one Democratic vote for passage, said Sen. Charles J. Colgan (D-Prince William). Yet in the next breath, Colgan said that leverage comes “in spite of the fact that we are going to be in the minority.”
Pressed to say which party he thinks will control the Senate, Colgan said: “Shoot, I don’t know. I’ve been in the minority. I’ve been in the majority. It’s a whole lot more fun to be in the majority. That’s why it’s so important to fight so hard for the majority.”
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