Northam’s Tie-Breaks: Political Courage or Choreography?

by Josh Stanfield of Activate Virginia

The recent Roanoke Times editorial questioning the necessity of the lieutenant governor got me thinking: what has LG Northam been doing in office? If he’s running on experience in Virginia government, and roughly half of his time in government has been as LG, an exploration of that experience seemed wise. As the editorial notes:

“The lieutenant governor has only two functions. To preside over the state Senate (breaking ties when necessary) and to make sure the governor is still breathing.”

So I started to explore the tie-breaks. I came across this Daily Press article in which Northam’s Chief of Staff, Clark Mercer, points out the cynical political games in Virginia’s state Senate. The article details the ways in which Republicans intentionally force ties on controversial bills – forcing Northam to break the tie and generate material for Republican campaign ads this fall.

“Mercer pointed to six times this session that Republicans reconsidered a tie vote or, in at least one case, reconsidered a winning vote, turning it into a tie for the lieutenant governor to break.”

With Mercer’s direction in mind, I delved into Northam’s most prominent tie-breaks – those that’ve come up in the campaign so far. I also looked into all of the tie-breaks from the 2017 session. Each case is examined in detail below, but here are my broad conclusions:

(1) Both Democrats and Republicans engage in political gamesmanship in the state Senate, and it partly manifests as contradictory voting or intentional abstentions.

(2) It’s disingenuous for Northam’s campaign or supporters to automatically describe his tie-breaks as acts of political courage or moments of principled stands. It’s also disingenuous for Republicans to use these tie-breaks against Northam – without noting their own roles in orchestrating the votes.

(3) These legislative dynamics aren’t unique to Virginia. But when political elites describe their work to the public, we should insist on honest discussions based in the (often depressing) realities of our legislature. We should be asking state Senators – why did you switch your vote? Why didn’t you vote? What exactly is going on?

Political junkies and operatives may snarl: “None of this is news – anyone who knows politics knows how the game is played.” That may be the case. But part of our mission this year is to expose newly engaged citizens to politics as actually practiced, not as portrayed in textbooks or television ads.

2014-2016 Tie-Breaks of Note

[2014] SB 617: Abortion.

Removes the requirement that a woman undergo a transabdominal ultrasound prior to an abortion.

This is the effective repeal of the ultrasound requirement, and a moment often cited as evidence of Dr. Northam’s strong record of protecting women’s reproductive rights.

On the first consideration of the bill, it failed 18-Y 22-N. Democratic Senators Puller and Colgan both voted nay with the Republicans. Yet on the same day, the bill was reconsidered; Senators Puller and Colgan both switched their votes to yea, forcing a tie-break. Northam broke the tie with a yea vote, but the bill eventually died in House subcommittee.

Colgan claimed he voted for the bill by mistake the second time, and he announced his retirement later that year. Puller’s initial nay vote is more difficult to understand, as she voted against the original law that this bill sought to repeal. Senator Puller announced her retirement in 2015.

A description of the political drama:

“The repeal measure passed with the help of Prince William County Democratic Sen. Charles Colgan, who typically votes against abortion-rights bills. Colgan initially voted against the bill, then said he voted for it by mistake when it came up a second time, which allowed the bill to pass.

An effort to allow Colgan to vote on the measure a third time — a motion that needed unanimous approval by the entire Senate —failed. The bill’s sponsor, Sen. Mamie Locke, D-Hampton, cast the lone vote against allowing Colgan an opportunity to change his vote.”

[2015] SB 785: Public employment; prohibits discrimination based on basis of sexual orientation or gender identity.

Prohibits discrimination in public employment based on the basis of sexual orientation or gender identity, as defined in the bill. The bill also codifies for state and local government employment the current prohibitions on discrimination in employment on the basis of race, color, religion, national origin, sex, pregnancy, childbirth or related medical conditions, age, marital status, disability, or status as a special disabled veteran or other veteran. The bill incorporates SB 1181.

Republican Senators Vogel and Watkins voted with 17 Democrats to create a 19-19 tie; Northam voted yea and the bill passed the Senate to later die in House subcommittee. Yet this 19-19 tie, on a critical civil rights bill, existed because two Democratic Senators didn’t vote: Senator Lucas and Senator Puller. Puller retired later that year. Lucas, elected to the state Senate in 1991, continues to represent the solidly blue SD 18.

You’d expect LGBTQ advocacy groups to demand explanations from these Democrats, but the closest I can find online is the following from Metro Weekly:

“Senators Linda “Toddy” Puller (D-Mount Vernon, Woodbridge, Quantico) and Louise Lucas (D-Portsmouth, Sussex, Franklin, Emporia) were not present in the chamber, but both have previously expressed support for the measure and have voted in favor of employment nondiscrimination bills in previous sessions.”

[2016] SB 48: Concealed handgun; person may carry concealed without permit if otherwise eligible to obtain permit.

Allows any person who is otherwise eligible to obtain a concealed handgun permit to carry a concealed handgun without a permit anywhere he may lawfully carry a handgun openly within the Commonwealth.

Republican Senator Hanger voted with 19 Democrats to create a 20-20 tie; Northam voted nay and the bill failed. Reporting here and here.

2017 Tie-Breaks

[2017] HB 2000: Sanctuary policies prohibited.

Provides that no locality shall adopt any ordinance, procedure, or policy that restricts the enforcement of federal immigration laws.

This bill failed to report from the Local Government Committee on February 14 (Republican Senator Hanger abstained). But on February 20, it was reported with amendment (Hanger voted to report). The amendment removed “to less than the full extent permitted by federal law.”

On the first consideration of the bill, Republican Senator Tommy Norment voted nay with the Democrats, forcing the tie-break. Northam broke the tie with a nay vote, and upon reconsideration Norment switched back and secured 21-19 passage. The Daily Press reported on the action:

“Shortly after the slim Republican majority forced Northam, one of two Democrats running for governor, to break a 20-20 tie on an immigration bill Wednesday, GOP contender Ed Gillespie blasted out an [sic] news release, bashing Northam for the vote.

Gillespie spokesman Matt Moran said the campaign didn’t request the maneuver from Senate Republicans, but he declined to say whether they knew it was coming.”

[2017] SB 1236: Candidate petitions; reduces number of signatures required for statewide candidates.

Reduces the number of signatures that an independent candidate or a candidate for nomination by primary is required to gather on the candidate petition when seeking to qualify as a candidate for the United States Senate, Governor, Lieutenant Governor, or Attorney General from 10,000 signatures, including at least 400 from each congressional district, to 5,000 signatures, including at least 200 from each congressional district.

On the first consideration of the bill, Republican Senator Vogel voted yea with the Democrats, Wagner (R) sat out (Rule 36), and Locke (D) didn’t vote. Northam then broke the 19-19 tie with a yea vote. On reconsideration, both Vogel and Wagner voted nay and the bill failed 18-21.

An interesting question here is that of Wagner’s abstention on the first vote. The pertinent portion of Rule 36 reads:

“A Senator who has a personal interest in the transaction, as defined in § 30-101 of the Code of Virginia, shall neither vote nor be counted upon it, and he shall withdraw, or invoke this rule not to be counted, prior to the division and the fact shall be recorded on the voting machine. If a Senator invokes this rule, the Senator shall not participate, directly or indirectly, in the matter wherein the rule is invoked.”

If it’s the case that Wagner abstained due to a personal interest, then the question arises: why did he not abstain when the bill was reconsidered?

[2017] SB 1077: Disabled parking placards; certification by mental health professional to DMV a person’s disability.

Allows mental health professionals to certify to the Department of Motor Vehicles a person’s disability that limits or impairs his ability to walk for the purpose of obtaining a disabled parking placard.

Republican Senator Chase voted to report this bill from the Transportation Committee. Chase then voted against the bill on the floor, and both Wagner (R) and Hanger (R) broke ranks and voted yea with the Democrats. Democratic Senator Petersen voted with the Republicans. Northam broke the 20-20 tie with a yea vote. The House eventually tabled the bill in subcommittee.

[2017] SB 1400: Poker; definition of illegal gambling and charitable gaming.

Provides that poker is a game of skill and therefore not illegal gambling. The bill also allows a qualified organization to conduct poker games in conjunction with its charitable gaming activities, but does not allow a charitable organization to conduct poker tournaments. The bill requires the Department of Agriculture and Consumer Services and the Charitable Gaming Board to regulate poker tournaments, defined in the bill as a competition organized for the purpose of conducting poker games at one or multiple tables where (i) competitors play a series of poker games, (ii) prizes are awarded to winning players on a fixed or proportional payout basis, and (iii) the total prize amount awarded to all winning players at the event is $50,000 or more. Finally, the bill requires poker tournament sponsors to obtain a permit before conducting a tournament and tournament managers and operators to be registered with the Department. The bill contains technical amendments. The bill has a delayed effective date of July 1, 2018.

Republican Senator DeSteph voted with the Democrats, and Senators Cosgrove (R) and Deeds (D) sat out the vote. Northam broke the tie with a yea vote, and the House later tabled the bill in subcommittee.

[2017] HB 1790: Administrative Process Act; development and periodic review of regulations, report.

Requires agencies to develop regulations in the least burdensome and intrusive manner possible and provides guiding principles for the development, adoption, and repeal of regulations. The bill also requires each agency to establish a schedule over a 10-year period for the review of all regulations for which the agency is the primary responsible agency. The schedule shall provide for the annual review of at least 10 percent of an agency’s regulations by July 1 of each year. Under the bill, the Governor will submit an annual report containing the findings of the regulation reviews by August 1 of each year to the chairmen of the standing committees of the House of Delegates and the Senate.

Republican Senator Cosgrove voted nay with Democrats, causing a 20-20 tie broken by Northam with a nay vote. Upon reconsideration, Cosgrove switched back and voted yea. The bill passed and was eventually vetoed.

[2017] HB 1696: Filling vacancies in the United States Senate.

Removes the language limiting the date at which a special election can be held to fill a vacancy occurring in the representation of the Commonwealth in the United States Senate. The bill also removes the authority of the Governor to make a temporary appointment to fill such a vacancy. The bill allows the Governor to immediately issue a writ to call an election upon receipt of written notification by a Senator or Senator-elect of his resignation and makes such resignation irrevocable after the date stated by him for his resignation or after the forty-fifth day before the date set for the special election.

Republican Senator Suetterlein voted nay with Democrats, creating a tie that Northam broke with a nay vote. The bill died.

[2017] HB 1974: Clean Power Plan; state implementation plan; General Assembly approval.

Requires the Department of Environmental Quality to receive approval from the General Assembly for a state implementation plan to regulate carbon dioxide emissions from existing power plants prior to submitting the plan to the U.S. Environmental Protection Agency for approval.

Republican Senator Black voted nay with Democrats, and Northam broke the tie with a nay vote. Upon reconsideration of the bill, Black switched his vote to yea. The bill failed to pass in the House.

[2017] SB 938: Smoking in outdoor public place; locality regulation.

Authorizes a locality, by ordinance, to designate nonsmoking areas in an outdoor amphitheater or concert venue owned by a locality. The bill requires such ordinance to provide for adequate signage designating such areas and provides that a violation of such ordinance is subject to a civil penalty of not more than $25 paid into the Virginia Health Care Fund.

Republican Senator Hanger broke with his party and voted yea. Northam broke the tie with a yea vote, but the bill was eventually tabled in House subcommittee.

[2017] HB 1753: Local government; prohibiting certain practice requiring contractors to provide compensation, etc.

Prohibits local governing bodies from establishing provisions related to procurement of goods, professional services, or construction that would require a wage floor or any other employee benefit or compensation above what is otherwise required by state or federal law to be provided by a contractor to one or more of the contractor’s employees as part of a contract with the locality. The prohibition shall not affect contracts between a locality and another party that were executed prior to January 1, 2018, or the renewal or future rebids of services thereof. The bill provides that localities shall not be prohibited from entering into contracts for economic development incentives in which the company receiving the incentives is required to maintain a certain stated wage level for its employees.

Republican Senator Suetterlein voted nay with Democrats, and Northam broke the tie with a nay vote. Upon reconsideration of the bill, Suetterlein switched his vote to yea. The bill was eventually vetoed.

[2017] HB 2394: Pawnbrokers; allowable late fees.

Provides that a pawnbroker may charge a late fee, not to exceed 10 percent of the amount loaned, for each item that is not claimed by the pledged due date.

Republican Senator Stanley voted nay with Democrats. Northam broke the tie with a nay vote. Upon reconsideration of the bill, Stanley again voted nay with Democrats. Northam again broke the tie with a nay vote. The bill died.

[2017] HB 1708: Standards of Accreditation; industry certification credentials obtained by high school students.

Requires the Board of Education (the Board) to consider for inclusion in the student outcome measures included in the Standards of Accreditation the number of industry certification credentials, as defined by the Board, obtained by high school students. The bill requires the Board to report its conclusion to the Chairmen of the House Committee on Education and the Senate Committee on Education and Health by November 1, 2017. The bill prohibits the Board from including the number of such credentials in the student outcome measures included in the Standards of Accreditation prior to the 2018 Session of the General Assembly.

This bill passed the House 97-0 and the Senate 40-0. Governor McAuliffe made a recommendation to be considered by the General Assembly. The House concurred with McAuliffe’s recommendation 100-0 in April session. Yet in the Senate, Republican Senator Wagner sided with 19 Democrats to force a 20-20 tie, which Northam broke with a yea vote. Upon reconsideration of the governor’s recommendation, Wagner returned to his Republican ranks to defeat it.

As a result, the governor vetoed the bill.

[2017] HB 2218: Public charter school applications and charter agreements; review by the Board of Education.

Permits the Board of Education to communicate any Board finding relating to the rationale for the local school board’s denial of a public charter school application or revocation of or failure to renew the charter agreement based on documentation submitted by the school board in any school division in which at least half of the schools receive funding pursuant to Title I, Part A of the Elementary and Secondary Education Act of 1965, as amended.

Republican Senator Cosgrove voted nay with Democrats, and Northam broke the tie with a nay vote. Upon reconsideration of the bill, Cosgrove switched his vote to yea. The bill passed and became law.

To Conclude

This review of Northam’s tie-breaks is absolutely not exhaustive – only 2017 is covered in any serious detail. But this exploration certainly raises questions, and some of these votes deserve separate analyses. Ultimately, I hope this serves as an illustration of the theatre and machinations involved in Virginia politics. Now more than ever we need to approach politics with our eyes wide open.