Shifting ground: What to expect in this year’s General Assembly session

Virginia State Capitol building. Photo by Skip Plitt/Wikimedia Virginia State Capitol building. Photo by Skip Plitt/Wikimedia

If you thought 2017 was a year like no other, well, 2018 will likely continue to ride the tide of the unprecedented, at least according to what we’ve seen in the new year’s first week.

The General Assembly begins its session January 10 with a tsunami shift from last year’s seemingly unbreachable 66-34 GOP majority. The makeover from the November 2017 election unseated 15 white male Republicans. Among the 15 Democrats taking office are 11 women, including the state’s first transgender legislator, first openly lesbian delegate, first Asian American and first Latinas.

For a few months, it looked like the legislature would be evenly split 50-50, until a random drawing January 4 kept the balance of power with the Republicans 51-49 when the 94th District’s David Yancey’s name was pulled out of a bowl to break the tie with Dem Shelly Simonds.

Even if Simonds asks for another recount, which means Yancey won’t be seated until the recount is certified, the GOP will hold a 50-49 majority, enough for it to elect Kirk Cox to succeed longtime speaker Bill Howell.

“We’ve never had a tied race for equitable distribution of the House of Delegates,” says State Board of Elections Vice Chair Clara Belle Wheeler. “We’ve never had a 50-50 split. There’s no protocol on how to pick a speaker.”

That crisis was averted, but questions remain about how the shift in power will affect legislation and committee assignments, where previously, Democratic bills went to die in subcommittee.

“The speaker has immense power,” says former Daily Progress political reporter Bob Gibson. “He has the ability to assign all members to all committees—at any time. The speaker assigns all bills to committees. It’s unlike anyone in the Senate.”

House Minority Leader David Toscano is optimistic that Cox won’t stack committees with Republicans because for the past two decades, the House leadership has agreed to proportional representation on committees.

Of course, those proportions look a lot different with a 66-34 majority than a slimmed down 51-49 majority.

“There is no doubt November 7 was an earthquake in Virginia,” says Toscano.

UVA Center for Politics’ Geoffrey Skelley says, “On the face of it, it’s a closer divided chamber. Previously, when Republicans were working with a very large majority, they could ignore anything Democrats had to say.”

Going in to the session even with a slim majority, “the GOP doesn’t have to worry about power sharing,” says Skelley.

The nearly even body has led Toscano to warn his members to not call in sick and not go to the bathroom during the floor session, in case a close vote is called while the member is away, the Washington Post reports.

And it’s not like shenanigans haven’t taken place in both chambers in the past.

The last time the House was this closely split was in 1998, when Dems held 50 seats and the GOP had 49, plus an independent who tended to vote with Republicans. “When the session opened, the Democrats had a slight majority and reelected Thomas Moss as speaker before other Republicans could be seated,” recounts Skelley. “There was a lot of outrage.”

And in 2013, with a 20-20 Senate split, Republicans took advantage of Democratic Senator Henry Marsh’s absence to attend President Barack Obama’s inauguration to vote to redraw the lines and take a chunk out of Marsh’s district.

Skelley doesn’t think the GOP can write off Dem political pressure after the 2017 election, especially with midterm congressional elections looming. “At the same time, in this partisan era, I’m going to vote on them battening down the hatches, especially if they’re stacking committees.”

Skelley points out that the House makeup could still shift if Simonds calls for a recount. And that’s not the only district where election results are being challenged. In the 28th District around Fredericksburg, where Republican Bob Thomas won by 73 votes after a recount, voters have filed suit in federal court asking for a special election because 147 voters were given the wrong ballots for their district. “That’s another potential sleeping dog,” he says.

And while all attention has been focused on the uncertainty in the House of Delegates, Republicans hold a slim 21-19 lead in the Senate, with a Democratic lieutenant governor as tiebreaker, offering an opportunity for bipartisanship in the usually more moderate body.

Albemarle Delegate Rob Bell, a Republican who’s heading to Richmond for his 17th session, is not perturbed by the influx of Dems. He says he’s served in close sessions before, as well as under both Republican and Democratic governors. “For a bill to become law, Governor Northam has to sign it, and we have to work together for that to happen,” he says.

Speaker Cox hasn’t made committee assignments yet, but with Bell the vice chair and senior member of the Courts of Justice committee, it’s possible he could end up chair. [Update January 11: Bell was named chair.]

State Senator Creigh Deeds was in the House of Delegates the last time it was this closely split in 1998, and he says most Republicans there now have no experience not being in the super majority. Photo by Jackson Smith

Twelve-term Republican Delegate Steve Landes, who represents western Albemarle, also has accrued seniority, and last year was chair of the education committee and vice chair of appropriations.

“One of my concerns is from listening to a lot of new members, who seem to be anti-business,” says Landes. “When the governor-elect is trying to improve the economy, saying business is the enemy” is not helpful, he says.

Landes offers a different perspective from pundits on how the House will operate with the influx of Dems. “The majority of what we do is not partisan.”

As for the still possibly up-in-the-air election results, says Landes, “We’ll play the cards we’re dealt.”

The General Assembly is a part-time gig, with the budget session lasting 60 days if all goes well. To Republican Delegate Matt Fariss, who represents southern Albemarle, some of the newly elected delegates seemed unaware that they need to be in Richmond for eight or nine weeks.

“My freshman year there were 13 of us,” he says. Adjusting to the House was like “drinking water from a firehose,” he says. “We knew to be quiet and learn.”

When it comes to his new colleagues, he says, “It’ll be interesting to see what they can get done.”

State Senator Creigh Deeds, who first came to the General Assembly in 1992, says the biggest difference will be “most Republicans in the House of Delegates have never been there when they didn’t have a supermajority.”

Says Deeds, “I think having to work with the other side is not a bad thing in a democracy.”

Big issues

Biennium budget

Every other year, the General Assembly makes a budget, and this is the year. 

“The budget will be and always is the biggest issue,” says Landes. “The unknown is whether we’ll have additional dollars. That could help us or hurt us.”

“The hardy perennials are still there—education, Medicaid and Medicaid expansion,” says Bell.

“The good news is our economy is picking up,” says Toscano. The biennium budget outgoing Governor Terry McAuliffe submitted has $500 million earmarked for new Standards of Quality for education, including teacher salaries, he says.

“Teachers and rural sheriffs’ departments need to get paid more,” says Fariss. “They’re having a hard time keeping deputies.” And he wants to avoid the situation of a couple of years ago when state employees were promised 2 percent raises, only to have state revenues fall short.

Medicaid expansion

McAuliffe pressed to expand Medicaid for 400,000 uninsured Virginians and take federal Affordable Care Act dollars every year he was in office—to no avail in the GOP-dominated General Assembly.

Bell, who is not a supporter of expanded Medicaid, refuses to speculate on how it will fare this year. “I always hesitate to predict,” he says.

“We have a real shot at doing that,” offers Toscano. 

“I honestly think Medicaid expansion has a real chance this year,” says Deeds, because the need for coverage continues to grow, especially in mental health.

Former reporter Gibson also says Medicaid expansion has a better chance, especially with a couple of moderate Republicans in the Senate open to the idea. And he points out that Democratic Governor-elect Ralph Northam, who campaigned on expanded health care, strikes a “cooperative, bipartisan tenor.”

Northam is also the first governor elected who’s a Sorensen Institute alum, notes Gibson, who used to head the political leadership institute. “He’s a true moderate.”

However, Skelley says the Republicans who lost their seats in the House were the moderates. “If the House is even more conservative, that would auger poorly for Medicaid expansion. That’s such a polarizing issue.”

Nonpartisan redistricting

As more citizens understand the impact of gerrymandering, which gave Republicans their 66-34 House of Delegates majority despite Democrats winning all statewide races since 2012, the call for reform continues. 

Previously, “anti-gerrymandering bills, despite Republican support, get killed in subcommittee,” says Gibson, who also co-chairs with former lieutenant governor Bill Bolling, a Republican, an advisory panel with One Virginia 2021, a bipartisan group advocating—and litigating—for compact, contiguous line-drawing when redistricting occurs in 2021 after the 2020 census.

Toscano says redistricting reform “may have a shot and Republicans could say, ‘We’d be better off with nonpartisan redistricting, especially if the Democrats are drawing the lines.’” But such reform requires a constitutional amendment, not an easy process that must go before voters twice before it becomes law. 

“I could imagine some consensus on that,” says Skelley. “However, it would have to get out of committee.” The reform requires General Assembly members giving up their right to draw the lines and a constitutional amendment. 

“It could be an opportunity for progress,” says Skelley, adding, “I’m skeptical.”

Local legislator bills

Following the summer of hate in Charlottesville, Toscano and Deeds will be carrying bills designed to lessen the area’s attractiveness as a place for violent clashes.

One bill adds Charlottesville and Albemarle to the 10 or so localities in the state that can prohibit people from carrying guns in public places, Toscano says.

Another would allow localities to determine what to do with monuments in public spaces, an issue that’s currently being litigated in Charlottesville after City Council’s vote to remove two Confederate monuments. “Mine would clear that up,” says Toscano.

A third bill was proposed by McAuliffe, who wanted Toscano to carry it, says the delegate. “It gives more flexibility for localities to regulate weapons around demonstrations like August 12.”

Toscano predicts there will be a lot more gun-safety legislation, much of it coming from Northern Virginia delegates who ran on issues such as restricting bump stocks, like those used in the Las Vegas massacre, or reinstating Virginia’s purchasing-one-gun-a-month prohibition.

Going into this legislative session, House Minority Leader David Toscano has warned Democrats not to call in sick or even go to the bathroom during the floor session, in case a close vote is called while the member is away. Photo by Elli Williams

The long-term viability of solar energy depends on the ability to store energy when the sun is not shining, says Toscano, and he’s carrying two bills to encourage increased battery capacity, including tax credits.

And he’s got money in the budget to go to the Daughters of Zion to help figure out who is buried in the downtown cemetery.

Bell is carrying one of his perennials, the Tebow bill, which would allow homeschooled students to participate in public school sports. “McAuliffe vetoed it three times,” he counts.

Bell’s bills typically deal with criminal justice, and this session he’s trying again with restitution reform. Its numbers “shock the conscience,” he says—$230 million overdue to victims.

Service dogs in court became an issue here recently, says Bell, so he wants to define what exactly a service animal is and what sort of notice must be given to have them show up in courtrooms.

He’s also got a bill that re-examines the statute of limitations for animal cruelty.

Landes usually carries legislation dealing with education, and this year he has a bill that establishes academic standards for dual-enrolling high school students who take community college courses. He also wants to make it easier to move from other professions into teaching to alleviate the teacher shortage, and proposes shortening a collegiate teacher-certification program from five to three years.

Last year Landes caused a stir when he tried to modify the ironclad revenue-sharing with Charlottesville that’s widely loathed by Albemarle residents. “I’m looking at that and hoping to reopen talks between the city and county,” he says.

Redistricting reform is not typically an issue for Republicans, but it is for many of Landes’ gerrymandered constituents, so he’s taking another crack at it, this time focusing on the process around line drawing so that localities don’t make precincts that the legislature will split.

Rustburg resident Fariss says his bills are aimed at reducing regulations to make it easier for people to do business. For example, a single proprietor locksmith has to jump through the same hoops as a business with 10 people, he says.

And Fariss has had it with hunters who dump animal remains all over the place. “It makes me so mad when these deer hunters throw deer carcasses out along public roads,” he says. He wants stiffer penalties and to draw attention to the unsightly littering.

The bills

Legislators file thousands of bills—literally—during their 60-day session, most of which die quietly in subcommittee. Because the elected ones have until the morning of January 10 to get those bills filed, we’ve only seen a smattering of legislation. 

Here’s some of what the General Assembly will be considering.

• Menstrual supplies exempt from sales tax, aka the Dignity Act. If you’re betting this bill didn’t come from a man, you’d be right. Another bill provides female inmates menstrual supplies at no extra cost.

• Swearing or cursing in public no longer a crime.

• Elimination of the Kings Dominion law. A couple of bills would allow localities to set their own school calendars, rather than have to request permission from the General Assembly to start school before Labor Day.

• Absentee voting for any reason, unlike current law that only allows specific excuses for not showing up at the polls on election day to vote.

• Female genital mutilation would become a Class 6 felony rather than the misdemeanor it currently is.

• Grand larceny threshold. Currently stealing something that costs $200 is a felony. Various bills up that limit to $500, $750, $1,000 and $1,500.

• Fornication between unmarried people would no longer be a crime.

• No talking while driving. Virginia could join the many other states that prohibit use of a handheld cellphone while driving. 

Former registrar: Newport News panel botched recount

Former Albemarle County registrar Jim Heilman, who has traveled all over the world monitoring elections in developing democracies, has been through at least eight recounts. “I believe I’m fairly knowledgeable about recounts,” he says.

And that’s why he feels qualified to declare that the three-judge panel handling the recount in the 94th District, upon which control of the House of Delegates hinged, made “two major mistakes.”

Democratic challenger Shelly Simonds trailed Republican incumbent David Yancey by 10 votes in the November 7 election for the 94th District seat representing the Newport News area. 

A December 19 recount put Simonds ahead by one vote. The Republican leadership sent its congratulations and the recount results went to a three-judge panel the next day for certification.

That’s where things went screwy, say Heilman, who also is a member of Albemarle’s electoral board, but stresses he’s speaking personally, not as a board member.

Overnight, an unnamed Republican contacted one of the judges and said an invalid ballot should be counted, says Heilman. And the three-judge panel reopened the recount.

“Mistake No. 1,” he says.

Former Albemarle County registrar Jim Heilman says a three-judge panel made two big mistakes in the Newport News district recount. Photo by Eze Amos

He explains that recount officials are appointed by each party, and with Democratic and Republican observers on hand, they feed all of the paper ballots through the optical scanners, which kick out undervotes or overvotes. Those are the ones recount officials scrutinize, he says.

And if there are questions about the ballot’s validity, it goes to the three-judge panel, says Heilman.

The ballot in question, which had bubbles filled out for both Simonds and Yancey and a line through Simonds’ name, was declared invalid by the recount officials, who signed off on the recount, as did the registrar, says Heilman.

“The three-judge panel has no reason to open the recount,” says Heilman. “The election is over. Under the Code of Virginia, they had no legal right to reopen the recount.”

The second mistake, he says, was to count the vote for Yancey. 

“The universal principle is that the intent of the voter is clear,” says Heilman. State election guidelines have “pages and pages” on what constitutes clear intent and whether a ballot is valid or invalid, he says.

The judges looked at other races marked on the ballot and reasoned that because the voter went Republican, using an X to indicate Ed Gillespie for governor, the intent was to vote for Yancey.

“No, no, no,” says Heilman.”It could be a split ticket. They shouldn’t be looking at other races.”

State elections guidelines are clear, he says. “Two shaded bubbles is an invalid ballot.”

Albemarle resident and State Board of Elections Vice Chair Clara Belle Wheeler disagrees, and says a 2015 revision in the rules for recounts allows the ballot to be counted if the intention is understandable. “The three-judge panel deliberated for over two hours,” she says, and until the panel certifies the recount, “It’s not a done deal.”

Heilman and Wheeler agree about one thing: If a voter marks the wrong candidate, he should get a new ballot.

Heilman says the optical reader likely would have had a pop-up screen indicating a problem with the ballot when the vote was cast. “I guess the voter didn’t want a new ballot,” he surmises.

The three-judge panel declared the race a tie at 11,608 votes each. The panel refused to reconsider Simonds’ challenge to the recount, and less than a week before the General Assembly was gaveled into session, Yancey won a drawing out of a bowl January 4, giving Republicans a 51-49 majority in the House and the opportunity to elect a GOP speaker.

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