( – promoted by lowkell)
by Paul Goldman
Could an obscure provision in Article IV, Section 11 of the Virginia constitution block the now-infamous redistricting power grab by 20 GOP Senators this past MLK Day? Right now, the top leaders of the GOP are operating under the assumption that the now infamous redistricting power-grab lead by Senator John Watkins only needed 20 votes under the Virginia constitution. But could a clause buried deep in the long and convoluted Section 11 require 21 votes?
If so, the bill was DOA upon arrival in the House of Delegates. Based on the news reports this morning, Republican House Speaker Bill Howell and Republican Governor Bob McDonnell have not ruled out rubber stamping this secretly-plotted GOP power grab, unprecedented in Virginia history. As the Richmond Times Dispatch writes today, the GOP Senators took blood oaths of silence, having crafted a secret plan likely to elect 28 GOP Senators in 2015 based on historic voting patterns. That’s a gain of 8.
Contrary to rock band AC/DC, it wasn’t a dirty deed done dirt cheap. On MLK day, Democratic Senator Henry Marsh was absent. The GOP didn’t make their move at first, lulling the remaining 19 Democratic Senators into being present for the morning quorum call. Once a quorum was recorded, the 20 GOP senators controlled the agenda: it is not possible to unring the quorum bell. Sticking together, the GOP Senators, led by the Atomic Senator, the top-uranium miner Mr. Watkins, passed the most radioactive 200-proof bottle of political whiskey in the state’s modern history.
But did Watkins and posse run afoul of the Virginia constitution? Section 11 reads as follows: “No bill which creates or establishes a new office, or which creates, continues, or revives a debt or charge, or which makes, continues, or revives any appropriation of public or trust money or property, or which releases, discharges, or commutes any claim or demand of the Commonwealth, or which imposes, continues, or revives a tax, shall be passed except by the affirmative vote of a majority of all the members elected to each house, the name of each member voting and how he voted to be recorded in the journal.”
What does the constitution mean by “creates or establishes a new office?” If this rarely cited provision applies to a redistricting bill, then the 20-19 party line sneak attack by the GOP failed to receive the necessary constitutional majority.
In another section of the constitution discussing redistricting, the document refers to members of the General Assembly Senate serving for a “term of office” in Article II, Section 6.
As a matter of constitutional law, the State Senate isn’t required to have 40 different districts. Article IV, Section 2 says the body can have no more than 40 but it could choose to reduce the number to no fewer than 33 in any redistricting bill.
Let’s assume the Senate were to pass a redistricting plan with only 33 Senators. Every Virginian would agree such a bill eliminated 7 “offices” as the term is used in the constitution. This is plain commonsense.
Unlike the Governor, Lt. Governor, and Attorney General, who represent the whole state of Virginia, the position of State Senator is created to represent a specific and defined slice of the body politic. In order to take his or her elected office in the State Senate, he or she must live within the specific geographical boundaries defining said office in state law. The office of State Senator is thus created for the sole purpose of representing those residing in the defined territorial boundaries. Every Virginian has the same Governor, Lt. Governor and Attorney General whether living in Accomack or Alexandria, Winchester or Wise County. But Virginians living in those four areas all have different State Senators.
Every redistricting, as a matter of state constitutional law, starts from scratch, with no legal attachment to the current apportionment law.
So we ask again: In terms of the Virginia constitution, what is the legal relationship as regards the creation of new Senate seats in a redistricting and the Article IV, Section 11 requirement of a 21-vote constitutional majority, not merely a legislative majority?
If Virginia keeps growing, eventually we will get a 12th member of our House of Representatives delegation. Would this be the creation of a “new office?” Every Virginian applying commonsense would say “sure.” This is true even though the “office” itself – in terms of title and general function – already exists, indeed has existed since George Washington took the oath of office.
Indeed, Senators, on their first day in office, have to take the “oath of office.” This is true even if they have been re-elected. Why? Because any political “office” is only good for a term of office. The same for the Governor, LG and AG. But those offices are created by the constitution, not an act of the General Assembly.
By logical deduction therefore, we have shown that the creation of a 12th member of Congress (which technically might be considered created by an act of Congress I suppose), or the elimination of 7 members of the State Senate, would be accepted as the creation of an office in the former example, or the eliminating of offices in the later example. In terms of commonsense, it doesn’t matter that a member of Congress or the State Senate previously existed in terms of title or position.
So what then of the situation where a redistricting bill keeps the number of Senators the same?
Logical speaking, it is no different than the previous two examples since the only difference is how the pie is divided: the basic underlying act, the creation of a certain number of offices to represent the people of Virginia, is the same save the numerical result.
So let’s get to where the rubber meets the road. Given the options available to the General Assembly in passing a State Senate redistricting bill – namely the choice of creating between 33-40 offices without any required connection to those currently in existence – didn’t the Watkins led GOP power grab require 21 votes, not 20?
Indeed there is a strong constitutional policy supporting this commonsense legal analysis. The Virginia constitution, as all state constitutions, only require a constitutional majority in a limited number of cases. Why? The theory is to prevent the passage of certain legislation when a quorum isn’t present on the floor of the body, and also to prevent the LG, technically not a member of the body, to break a 20-20 tie on certain measures allowing a party without a majority to dominate the body.
Or put another way: The Virginia constitution is setup to prevent the very situation at issue here, where a party who failed to elect a constitutional majority can maneuver in secret and on a straight party vote create offices of profit and privilege for itself under the guise of the public interest.
Could 20 GOP Senators on their own eliminate a judge position, and then create a new one – keeping the number the same – for a fellow Republican? No. Could they do away with a position in the Governor’s cabinet, and then create a new Secretary for a fellow Republican, again keeping the number the same on the grounds said cabinet positions already exist? No.
As a matter of constitutional law, expressed plainly in Article II, Section 6, the GOP power grab, if it were to be enacted, would immediately create 40 new Senate offices, all vacant for the time being. Any elected office, by definition, is created to represent a particular slice of the electorate. By law, every Virginian qualified to vote under the constitution has a legal right to vote for anyone running for Governor, LG or AG. But he or she can only vote for certain candidates for State Senate, not anyone running for the position. The office of State Senator, therefore, is derivative, as in derived from the specific powers of roughly 2.5% of the people empowered by law to choose the holder of that office. The other 97.5% have no say. Moreover, in 2015, if the GOP power grab works, those 2.5% or a smaller or larger part thereof, may or may not be allowed to vote for the same person representing them in the office of State Senate created for that very purpose. Unlike a statewide office, it all depends on an act of the General Assembly.
The “office” of State Senator is defined by the specific geography created by the operative redistricting law. In 2015, to the extent that changes district line, it legally creates new “offices” to be filled by a new equation of voters.
The constitutional bottom line: every redistricting bill is based on a decision by the GA to create somewhere between 33-40 State Senators. The choice is theirs. Consistent with state and federal law, statutory and constitutional, they can choose to carve up the state as they see fit. They may choose to keep the same 40 Senators. But as a matter of constitutional law, they have created new “offices” should the district lines change in any material way at least.
Given the fact the redistricting bill is fundamental to creating the very body that the constitution says will sometimes require a constitutional majority to do the people’s business, it makes absolute legal sense to require the bill creating this body to likewise require a constitutional majority for passage.
If the Virginia constitution had required a specific number of state senators, perhaps a different argument could be made. But the constitution is clear: the GA has to first decide how many offices to create before it can redistrict.
That they chose to keep the same number – 40 – as previously existed again doesn’t change this mandatory constitutional duty. As a legal matter, they actually started at 33, since this is what the constitution says is minimally required. They choose to create 7 more than required.
The 40 were created for political reasons. This is their constitutional right. But the legislative basis of their action revolved around the purpose of creating a certain number of new offices for their Republican friends. This they have admitted.
The GOP position, presumably, is that since these offices are just Senators representing different populations, they are not “new” in the constitutional sense. But if they aren’t new, then they would by deduction have to be the “old.” Yet according to the constitution, a person representing the “old” position who runs and supposedly wins one of the “not new” positions can actually be prohibited from taking office if he or she refuses to move their residency depending on the geography of this “not new”position.
So I ask: How can a re-elected Senator being considered as merely keeping the same “not new” office when he or she can lose that office despite being re-elected depending on the geographical differences in the two districts? (Remember, it isn’t necessary to reside in a district to run and win. But if you want to assume your “not new” office in the GA, you must reside in the “not new” district.”)
By logical deduction, the conclusion is thus: Since a Senate redistricting starts with 33 as the constitutional minimum, the GOP power-grab bill set out to intentionally create its own version of 40 “new offices”, slicing and dicing as they decided by their own criteria. Some number of these offices were specifically created so they would not replicate those already in existence except for the title in terms of the representation at issue.
The people get it: the GOP intended to create new “offices” as regards their Senators to the maximum extent possible to benefit the GOP, not the voters. Except for keeping the title – Senator – of the office the same, the whole point of the power grab is to create “new offices” by any commonsense definition of the constitutional process involved.
As a matter of the Virginia constitution, requiring a 21-vote constitutional majority is consistent with the document in all regards. The GOP intended, indeed admitted, to creating new seats for Republicans.
I am from the “if it quacks like a duck, walks like a duck, and cites legal documents like a duck then it’s a duck” school. Or in this case, a bill to create “new offices” is very much a “duck.” Thus, the 20-19 vote to pass the Watkins bill fell shy of the constitutional majority.
Speaker Howell should rule as much and get on with the real business of the people of Virginia.