RICHMOND — The House and Senate passed resolutions Tuesday that will let voters decide whether the state’s right-to-work laws should be enshrined in the Virginia Constitution.
The Republican-backed measures passed both chambers without a single Democratic vote, clearing the last major hurdle in the two-year process to get on the ballot.
Gov. Terry McAuliffe (D) will not have an opportunity to weigh in on the measures, which, as resolutions, are not sent to his desk.
House and Senate officials said they expect the proposed constitutional amendment to be on the November ballot — over the objections of some registrars concerned that ballot questions in 2016 will slow down voting during a high-turnout presidential election year.
In the Senate, the measure prompted a heated argument that highlighted the GOP’s distrust of Attorney General Mark R. Herring (D). Herring has been a hero to liberal Democrats and a flash point for the GOP since he declined to defend the state’s ban on same-sex marriage shortly after taking office in January 2014. He later extended in-state tuition to certain illegal immigrants and took action on abortion clinics and guns, further inflaming Republicans.
Democrats said there is no need to amend the Constitution because state law has a right-to-work statute, which bans making union membership a condition of employment.
But the sponsor of the Senate legislation, Sen. Mark D. Obenshain (R-Rockingham), argued that future general assemblies and the current attorney general could not be trusted to support the right-to-work law that has been on Virginia’s books for decades. Obenshain, who narrowly lost the 2013 race for attorney general to Herring, noted that Herring had filed a brief on behalf of teachers’ unions in a California right-to-work case.
Other Republicans made a broader case against Herring based on his actions in other areas, including same-sex marriage and gun policy.
“We have an unprecedented activist right down the hill in that building,” said Sen. Thomas A. Garrett Jr. (R-Buckingham). “That gentleman took an oath to uphold the laws of Virginia and has at every turn worked to undermine the laws of Virginia.”
Herring’s spokesman, Michael Kelly, said the attorney general’s actions have always been consistent with the law.
“Attorney General Herring [has] been absolutely right on the law with marriage equality, in-state tuition for DREAMers, and enforcement of Virginia’s concealed handgun laws, and no one is even challenging Virginia’s right-to-work laws,” Kelly said in an email. “Everything he has done has been firmly grounded in the law, affirmed by courts and other authorities, and is in line with where Virginians are on the issues.”
On same-sex marriage, for instance, Herring has said he was not ignoring Virginia law but recognizing that it no longer conformed with a higher authority — the U.S. Constitution, given signals the Supreme Court had sent six months earlier with rulings in two same-sex marriage cases. The court explicitly legalized gay marriage in June 2015.
In December, Herring infuriated gun rights Republicans by severing reciprocity with 25 states whose concealed-carry policies were looser than Virginia’s. A deal struck by McAuliffe and GOP leaders last week would undo that, but Republicans remain irked at Herring.
Herring said he was simply enforcing the state’s concealed-carry law, which recognizes concealed-carry permits only from states with standards on par with Virginia’s — something a long line of Republican predecessors failed to do.
“It appears Mr. Herring gets criticized when he follows the law, and he gets criticized when he doesn’t,” said Sen. Richard L. Saslaw (D-Fairfax).
The debate was more muted in the House, where the legislation was sponsored by Del. Richard P. “Dickie” Bell (R-Staunton). The House still must pass enabling legislation to put the matter on the ballot, but that is considered a formality. A vote is expected Wednesday.
Under questioning from House Minority Leader David J. Toscano (D-Charlottesville), Bell said he was not aware of any challenges to the law but maintained that amending the constitution would be a “proactive” step to head off future opposition.
“The right to work — just like the right to life, liberty and the pursuit of happiness — is fundamental, and it deserves constitutional protection,” Bell said.
Toscano noted that union membership represents 5.4 percent of the state workforce and is falling. He invoked James Madison’s warning that the constitution only be changed on “great and extraordinary occasions.”
“We don’t change the constitution willy-nilly in the commonwealth,” Toscano said.
Jenna Portnoy contributed to this report.