At UVa it isn’t all about Sullivan

October 16, 2015 by David Toscano

Last week, Del. David Ramadan suggested it was time for the tenure of University of Virginia President Teresa Sullivan to come to an end. While we deeply appreciate our colleague’s concern for the university and his desire to combat sexual assault on college campuses, we disagree with his conclusion and are concerned that his focus on one person detracts from what is needed to confront the critical challenges our universities now face. In fact, we believe Sullivan not only continues to have the confidence of the university community and the Board of Visitors, but also enjoys a positive and productive relationship with the General Assembly as a whole.

Ramadan is right that Sullivan and U.Va. have faced a series of unique and unprecedented challenges in recent years. The abductions and murders of Morgan Harrington and Hannah Graham, both of which occurred off-Grounds; the two unfortunate and in hindsight obviously avoidable incidents involving the Alcohol Beverage Control and university students (again, these incidents occurred off-Grounds); and the sensational controversy over the now retracted Rolling Stone article would unsettle even the steadiest of ships.

But instead of being unsettled and retreating, President Sullivan, the Board of Visitors, and leaders at the university joined with the community and the legislature to act. Sullivan and the Board convened stakeholders throughout the university to address sexual assault, a serious problem that afflicts not just this university, but college campuses across this nation. During the past year, the university launched training and awareness campaigns on Grounds, added a police substation at the university corner to enhance safety, improved lighting and camera systems, hired more staff to provide proper counseling and support to survivors and implemented online education modules on alcohol and sexual violence.

Once the Rolling Stone allegations were discredited, it would have been easy for the university to withdraw, arguing that the problem was overblown. Instead, Sullivan, the Board and the university community pressed on, working with the legislature to produce three new laws that will likely be seen as national models of how states can navigate the complexities of federal law to produce an environment where survivors get appropriate support and control their own destiny while reporting serious offenses.

We know how difficult these bills were to construct because we worked with a number of our legislative colleagues on all three; they were extremely complex undertakings, took countless hours and could never have been done without the complete cooperation of the university and its president. While no legislation is perfect, we believe these laws will make a difference.

We encourage Ramadan to reflect on the statement of Catherine E. Lhamon, assistant secretary for civil rights, writing in the summary of the Department of Education’s recently completed compliance review of the university, that “President Sullivan’s leadership in crafting an exemplary new policy to address sexual violence and sexual harassment and in confirming her continuing commitment to comprehensive work to assure a safe learning environment at U.Va. sets just the right tone for her students.”

Clearly, work remains to be completed to combat sexual assault on our campuses. But we should give credit where it is due, and our colleague simply missed the point in his criticism.

Finally, it is also important to remember the role the General Assembly plays with respect to higher education governance. We help set policy, provide funding and have an important oversight role; but, it is not our role to micromanage the affairs of our colleges and universities. We appoint and ensure that the most qualified and capable leaders are at the helm of each school’s Board of Visitors. U.Va. has an outstanding Board comprising some of the commonwealth’s most distinguished citizens in whose wisdom and judgment we have tremendous confidence. This Board recently extended President Sullivan’s contract by two years without a single dissenting vote. The university has a new strategic plan in place, whose implementation will further enhance its reputation as one of the best universities in the country. Demanding the resignation of the president is not the right thing to do, will do nothing to advance the strategic plan and only complicate our efforts to improve higher education at U.Va. and our other universities!

by David Toscano and Jimmie Massie

Jimmie Massie represents the 72rd District in the Virginia House of Delegates, is chairman of the Higher Education Subcommittee and may be reached at deljmassie@house.virginia.gov.

The Francis Effect: Policy, Progress, and the Prospects for Common Ground

October 7, 2015 by David Toscano

While it may be too early to determine whether the Pope’s recent visit will have a lasting effect on how we conduct our civil lives, our politics, or even how we think about ourselves as a nation, he has certainly gotten our attention. During his visit, every news outlet was focused, not only on his every word, but on the symbolic elements or where he went or who he met. From the White House to his powerful prison visit, Americans were transfixed by his presence and his words of peace and reconciliation. Some have argued that the Pope even influenced John Boehner’s resignation as Speaker. I personally think this had more to do, as Republican Representative Peter King says, with the “crazies” taking over the GOP and a solid conservative like Boehner just seeking a way out.

But ideas still matter, and the Pope’s statements will be used to support a wide variety of policy initiatives at both the state and federal levels. When the Pope said that “we were all, at one time or another, foreigners,” and we should look at immigrants as people rather than as statistics, he is not-so-subtly suggesting that our policy in this area is flawed and requires a much more compassionate approach. His thinking in this area is very different from those who are in the ascendency in the Republican presidential sweepstakes, as well as those who control legislative bodies throughout this country, and is more consistent with the view that while unlimited and uncontrolled immigration cannot be countenanced, there should be a path to citizenship for people who come here in search of a better life and in a desire to be assimilated into this country.

At the state level, the Pope’s pronouncements will undoubtedly be used as a further justification for Medicaid expansion. While we Democratic advocates of expansion have tried to convince our Republican colleagues of expansion’s economic benefits (30,000 new jobs, returning our tax monies from Washington, D.C. to Virginia, shoring up the economic viability of our hospitals, helping balance our strained state budget), at its heart, this debate has always been fundamentally about serving those in need by providing some form of medical insurance to 400,000 Virginians who do not presently have it. Republicans have consistently taken the position that expansion would create enormous fiscal challenges for our budget, even though the federal government would initially pay for 100 percent of its cost. Early in the debate in the General Assembly 2014 session, Republicans suggested that they would have a plan of their own. We waited and waited, believing that any proposal to insure those 400,000 could be a winner, but the plan never came. Since that time, we Virginians have sent almost $2.8 billion of taxpayer monies to D.C., we have less money in our state budget as a result, and we have lost an opportunity, at least for the moment, to insure more Virginians. Perhaps the Pontiff’s words will make a difference; time will tell.

As expected, Pope Francis took direct aim at the conservative elements of our nation in his discussion on climate change. There is a certain irony in watching the leader of a church who formerly viewed science skeptically embracing the scientific consensus that disruptions in our climate are being caused largely by human activity, and that different policies are necessary to combat it. Many of us hope that the Pope’s view on this issue will be a “game changer,” but this is not likely to occur until we change the Congress and many of the legislators in state houses across the country, whose antipathy to anything supported by President Obama is without bounds.

While the policy prescriptions embedded in the Pontiff’s pronouncements are, on balance, much more favorable to the Progressive view than to the Conservative, this Pope is concerned about more than just public policy; he is also challenging us to embrace a more civil political process by which we engage each other in attempting to create a climate of hope, opportunity, and justice.

Pope Francis exudes humility and civility, two characteristics not always found in our political sphere. His prescription that “a family is like a factory of hope” and that difficulties can be overcome by discussion and compromise, suggests that, while we should not abandon strongly-held views, we should seek understanding and common ground that improves the public good. He is neither politician, nor prophet; he is a pastor, and his words and deeds during his visit have challenged us to discover better ways to develop policies in the service of others.

As always, it is a pleasure to serve the 57th District in Virginia’s House of Delegates. Please do not hesitate to contact me with any questions or comments on matters before the Commonwealth.

Sincerely,

David Toscano

Redistricting Special Session Falls Apart

August 20, 2015 by David Toscano

Democratic plan remains before the Body

The special session on redistricting called by Gov. Terry McAuliffe to redraw congressional lines that had been ruled unconstitutional by the District Court fell apart on Monday, August 17, 2015, largely over a Republican effort to fire a sitting Supreme Court Justice, Jane Marum Roush. Since there is much public confusion about what actually happened, I will try to provide you some background.

On October 7, 2014, the Federal District Court for the Eastern District of Virginia ruled that the 2012 General Assembly redistricting for the House of Representatives was unconstitutional, holding that the 3rd Congressional District was an improper “racial gerrymandering.” The U. S. Supreme Court rejected the appeal of this decision by the House Republicans in March 2015. On June 5, 2015, the Federal District Court reaffirmed its decision and directed the General Assembly to draw new lines by September 1, 2015. In response, on July 16, 2015, Governor McAuliffe called for a special session to commence on August 17, 2015, in order to fix the problem. He then sent a letter to House and Senate Democratic and Republican leadership requesting that they return to Richmond in advance of the special session to develop a bipartisan map that could be passed. The Republican leadership immediately rebuffed the Governor and refused to meet. When this happened, House and Senate Democratic leadership moved independently to produce a map that could pass constitutional scrutiny. After considerable work, Democrats provided a new map and it was introduced as legislation in both the Senate and the House. The bill can be accessed here. An explanation of what the proposal does can be found here.

We believe that our map corrected the constitutional problems with the old map, but it is not likely to be considered by the House Privileges and Elections Committee or by the Senate. After the Senate adjourned on Monday, the House Privileges and Elections Committee, the group that would consider our bill, adjourned as well, interrupting a speaker in mid-presentation and calling a halt to the public hearing on redistricting which had brought citizens from throughout the Commonwealth to testify. The Democratic Plan remains before both the Senate and the House, but will not likely receive a vote. (Republicans in the Senate stated on Monday that they were not going to produce or consider a plan, one of the arguments used by the Senate in supporting its motion to adjourn.) The result will likely be that the federal court will draw new lines for the House of Representatives sometime after September 1, 2015.

The redistricting issue got caught up in the debate over whether to retain Justice Roush on the Virginia Supreme Court. As is the Governor’s prerogative under the Virginia Constitution, he appointed Justice Roush to the vacancy created by the retirement of Justice LeRoy F. Millette, Jr. in April. This appointment occurred after a lengthy and public process conducted by the Governor’s office to vet a number of candidates with Bar Associations across the state. After completing of the vetting process, the Governor announced Justice Roush’s appointment on July 27, 2015, having received the endorsement of Republican Delegate and House Courts of Justice Committee Chair Dave Albo. Once the announcement was made, however, the Republican leadership cried foul, and stated that not only would they choose their own candidate, but that they would not even extend the courtesy of an interview to Justice Roush. If she had been removed, it would have marked the first time in 115 years that a sitting justice was taken off the court in Virginia.

Not once did the Republicans question Justice Roush’s qualifications, preferring instead to focus on the fact that the Governor did not request their approval in advance. They maintained this position throughout the day on Monday, August 17, and tried to push through their own candidate. They were foiled in the Senate, where their candidate failed to obtain a majority vote necessary, due to a 20-20 tie. The Senate, having been informed by the Republicans that no redistricting plan would be offered, then voted to adjourn. As a result, Justice Roush keeps her position until her present appointment expires on September 16, 2015. Republicans claim that the Senate adjournment is unconstitutional, but the Senate has adjourned and shows little interest in returning to Richmond. If the General Assembly is no longer “in session,” the Governor can make another “recess appointment,” and there is much speculation that Gov. McAuliffe will reappoint Justice Roush to the position. This will likely result in a repeat of this debate in January, as she would require confirmation by the House and Senate.

Consequently, when the dust settled Monday late afternoon, we were left with the following:

Justice Roush retains her appointment as a Justice of the state Supreme Court at least until it expires on September 16, 2015.
Since the Senate has adjourned, no bills for redistricting can be taken up and passed, even if the House were to produce such a bill.
Democratic Leadership still has a bill before the body, but it is unlikely that this bill will be considered by the General Assembly prior to September 1, 2015.
Numerous members of the public were denied the opportunity to speak on redistricting issues or on the Democratic plan that had been proposed, since House Republicans have adjourned the Privileges and Elections Committee.
The Federal court will likely draw the new congressional lines.
We will need to work hard to repair the numerous hurt feelings and bring some bipartisan conciliation to the General Assembly.

As always, it is a pleasure to serve the 57th District in Virginia’s House of Delegates. Please do not hesitate to contact me with any questions or comments on matters before the Commonwealth.

Sincerely,

David Toscano

P.S. As many of you know, former UVA professor and civil rights icon Julian Bond, died last Sunday. My floor speech in memory of Julian Bond can be viewed below.

Redistricting Special Session to begin August 17, 2015

August 14, 2015 by David Toscano

The redistricting process is one that voters should should follow more closely than they have in the past. It is critically important for the future of democracy and how citizens choose their leaders. Over the last ten years, redistricting software used to draw districts has become so sophisticated that representatives, in effect, have chosen their constituents rather than the other way around. In the process, we have been left with more political partisanship, less competition, and greater political cynicism in our electorate. Under the U. S. Constitution, redistricting must to occur every ten years; it is through this process that legislators are supposed to readjust the boundaries in light of population shifts. The U.S. Supreme Court has set specific standards for the constitutionality of redistricting. If you would like some additional background on the subject, go to One Virginia 2021, Virginians for Fair Redistricting, to read more.

Standards for constitutional redistricting suggests that districts be compact, contiguous, and include populations that have a “community of interest.” The 57th House District that I represent actually is a good example of this. It looks like a circle and includes mostly urban and suburban areas that have similar strengths, values, and challenges. Many districts in Virginia, however, are not drawn this way, and often appear as strange shapes.

We return to Richmond because of the ruling of the federal court that when the Virginia General Assembly drew the lines for the Virginia Congressional Districts in 2011, the 3rd Congressional District was drawn in an unconstitutional way. On October 7, 2014, the federal court issued its opinion and directed the General Assembly to redraw the lines. The Republicans appealed this decision to the U.S. Supreme Court. In March 2015, the Supreme Court refused to hear the case, and sent it back to the district court. On June 5, 2015, the district court directed the General Assembly to redraw the unconstitutional lines by September 1, 2015. When the Republican-controlled legislature showed no desire to have a special session to do this, the Governor issued a call for this session in a letter of July 16, 2015. Two weeks later, he sent another letter to the House and Senate Democratic and Republican Leadership asking us to return to Richmond before the special session began to see if we could develop a bipartisan map prior to the session. The Republican Leadership said no. It is clear that the Republican Leadership wants no part of drawing new Congressional lines, feeling that it will upset their present 8-3 majority in the Congressional delegation, and will potentially lead to the election of a delegation which more closely conforms to what is the present political configuration in our state, where about 50 percent of the citizens vote Democratic and 50 percent vote Republican.

In my view, we have a short-term and a long-term problem. First, we are under a court order to act by September 1, 2015. For attorneys like myself, court orders are a big deal; without complying with court orders, we undermine the Rule of Law. Hence, we need to find a fix to remedy the unconstitutional map drawn in 2011. With this in mind, Democratic Leadership is proposing a new map that we believe addresses the constitutional infirmities with the old lines. We did so in order to give the public an opportunity to comment and offer suggestions in advance of the General Assembly session. We have also challenged our Republican colleagues to develop a map of their own so we can work together to fix the short-term problem.

Our map specifically accomplishes the following:

In redrawing the 3rd District, race is no longer the predominant consideration. The 3rd District is no long “packed” in a way that violates the Equal Protection clause of the 14th Amendment, which made the old map unconstitutional.
The new Congressional map has districts that are more compact that the old unconstitutional plan.
The new map respects communities of interest and does not divide political subdivisions the way the old map did.
The new map meets the standards of Article II, Section 6, of the Virginia Constitution, which requires that “every electoral district shall be composed of continuous and compact territory and shall be so constituted as to give, as nearly as is practical, representation in proportion to the population of the district.”
The map is drawn to equally divide the population of Virginia between all eleven districts and conform with the one person – one vote rule.
The new districts comply with Section 5 of the Voting Rights Act in that they maintain the opportunity of minorities to elect candidates of their choice. While the 3rd District moves a number of African-Americans to make the line drawing constitutional, there are other districts where African-American voting population increases, specifically in the 3rd district and the 5th (our Congressional district).
Many of the new districts are more competitive than ones that existed under the old plan, especially in the 10th, 5th, and 3rd. In reviewing the voting pattern in the proposed districts, five of them tend to vote Democratic in greater numbers than Republicans, five of them tend to vote Republican in greater number than Democrats, and one is a district that can and does vote both ways, depending on the election. This is the type of competitiveness we believe Virginians want.

As a long-term solution, many legislators support creation of a non-partisan redistricting commission. I have supported these bills since I was elected to the General Assembly in 2006 and will continue to do so. The Republicans have defeated them in every single session. These commissions have been found to be constitutional by the U. S. Supreme Court. To date, House Republicans have expended over $300,000 in Virginia taxpayer dollars in legal fees defending redistricting cases, including $225,000 in the Congressional case where the line drawing has been shown to be unconstitutional. If we had a non-partisan redistricting commission, it is less likely that these kinds of taxpayer expenses would be incurred, and more likely that the line drawing would not be designed for incumbent protection or an unconstitutional purpose, but instead would be based on the principle that citizens should have an opportunity to choose their own representatives rather than the other way around.

While many of my colleagues may bristle at the notion of having their ability to draw lines taken away from them, those who have studied this issue carefully believe that our long-term goals of diminishing political partisanship and enhancing voters’ control over the electoral process will be better served by nonpartisan commissions. It is my hope that the General Assembly will embrace this concept sooner rather than later.

###Delegate David J. Toscano represents the 57th District in Virginia’s House of Delegates, which is comprised of the City of Charlottesville and a portion of Albemarle County, a seat once held by Thomas Jefferson. Mr. Toscano also serves as the House Democratic Leader, a position he has held since 2011. You may contact his office in Charlottesville at (434) 220-1660, or email him, david@davidtoscano.com.

Supreme Court Decisions and Virginia

July 2, 2015 by David Toscano

Last week was a week that will not be forgotten for many years – and I’m not just talking about the fantastic run of the UVA men’s baseball team to the NCAA Championship. On two separate days, and in two dramatic decisions, the U. S. Supreme Court took actions that will influence the United States for decades to come. They also set the stage for the next series of debates in the General Assembly about healthcare and discrimination.

Many of us who are lawyers felt that the court would have been on sound legal ground with their endorsement of same-sex marriage and their refusal to embrace the arguments of the critics of the Affordable Care Act (ACA) in King v. Burwell, a case attacking the ability of the federal government to provide subsidies to citizens seeking to purchase health insurance. But until the opinions were issued, many of us remained anxious that the conservative forces on the court would find a way to turn back the tide of history.

In King v. Burwell, a great deal was at stake. More than 7 million Americans would have lost these subsidies. This included over 268,000 Virginians. The result would have been chaos. People would have lost their coverage, the health insurance markets would likely have gone into a tailspin, and the ACA would have been put at risk. Fortunately, we did not have to endure this, and the ACA emerged stronger than ever. Fight as they might, the options for the detractors of the Act are becoming increasingly limited. Even with a Republican president, undoing the Act will be very difficult, if not impossible, and there are very few fundamental legal attacks that now can be mounted in order to destroy the Act.

In the aftermath of King v. Burwell, the issue for Virginia remains largely the same, that is, will the General Assembly find a way to capture what is now almost $2 billion in Virginia taxpayer dollars that have been transferred to Washington and are being used to support Medicaid expansion in other states of the country? Many of us feel that it is fiscally irresponsible to use Virginia monies to help insure citizens in other states. It would be better used here to help 400,000 Virginians who would benefit by expansion and assist hospitals and healthcare providers who are facing financial challenges in the aftermath of the changes brought on by the ACA. Republicans in the House of Delegates have largely remained opposed to Medicaid expansion, arguing that the state cannot afford it, even though 100 percent of the expansion in the first three years would have been paid by the federal government. We are hoping that our colleagues will realize that expansion is not just about helping those in need, but also about being fiscally responsible in using Virginia taxpayer dollars to support its citizens and businesses.

The Supreme Court’s endorsement of same-sex marriage in Obergefell v. Hodges was something that many legal analysts had come to accept as a foregone conclusion. Most of the federal courts in this country had already accepted this view, and any Supreme Court’s rejection of the concept would have come to many as a shock. Nonetheless, as President Obama said, the decision arrived as a “thunderbolt.” When one thinks about how this country has changed in less than a decade, it provides great hope for the future.

But make no mistake about it – there are many things that remain to be done. As one pundit recently put it, the decision means that “you can be married on Saturday but still be fired on Monday.” Many states, including Virginia, do not extend the protection of anti-discrimination employment and housing laws to gay citizens. Consequently, you will see many of us advocating for those changes when we return to Richmond in January. In addition, there are thousands of places in the Virginia Code that will require changes to conform to the Supreme Court’s decision. Many of these changes will be routine, but others may turn out to be controversial and provide the conservative element of the General Assembly an opportunity to resist a Supreme Court decision that they are having a hard time accepting. Many of these arguments will be couched in the language of religious freedom, which will make for very interesting and emotional debate, but I am hoping that religious freedom will not be used as rationale for discrimination and that our desires for inclusion will not compromise religious liberty. Hopefully, the fact that the country is now in a very different place than it was a decade ago will allow us to embrace anti-discrimination measures and, therefore, continue to bend the arc of history a little closer to justice.

Not to be outdone, the final Supreme Court decision, which has implications for Virginia, was issued in a 5-4 decision on June 29, 2015. The case of Harris v. Arizona Independent Redistricting Commission gave constitutional backing to Arizona’s use of an independent commission to draw new election district maps for its members of Congress. In the case, the Supreme Court ruled that a state’s voters can delegate the task of fashioning congressional district boundaries to an independent commission. Although the situation in Arizona is not totally analogous to Virginia, as we could not enact an independent commission by a public referendum, it provides an argument to counter some of the opposition to these commissions. Some have argued that creating independent commissions takes away the requirement under the Constitution that lawmakers create the election districts. This court case suggests otherwise.

More important to the Virginia situation, however, are two cases that are in various stages of court action, and which potentially have tremendous implications for the composition of the Virginia Congressional delegation as well as the House of Delegates. In Page v. Virginia State Board of Elections, the federal courts have already ruled that the General Assembly’s recent drawing of congressional districts is unconstitutional, and directed the legislature to return before September 1 to redraw the lines. The Republican-controlled House of Delegates has, to this point, refused to return by September 1 and argued that there will be additional appeals and a stay (delay) of the court’s order. The U. S. Supreme Court has already refused to consider the Page case so it is likely that we will be forced to redistrict congressionally in the next several months. The more significant case for the House of Delegates, however, is Bethune-Hill v. Virginia State Board of Elections. That case was filed by fourteen plaintiffs early in 2015 and has its first hearing set for this month. The same logic which prevailed in the Page case is being used to attack the House of Delegates’ redistricting in the Bethune-Hill case. If plaintiffs prevail in this case, the entire House of Delegates’ district map will be scrambled, perhaps as early as the 2016 election. This would have huge implications for the composition of the House of Delegates as ten to fifteen seats would likely become competitive overnight. It this happens, it will perhaps be the most significant political development to occur in Virginia in a decade and, therefore, merits close attention.

In my next reports, I’ll talk a bit about the work I’m doing as leader statewide, my optimism about the upcoming House races, and the continuing controversy over the heinous shootings in South Carolina and the Confederate flag.

If you need any assistance with or have questions/comments about matters before the Commonwealth, please do not hesitate to contact my office at 434-220-1660, or email me at david@davidtoscano.com. As always, it is a pleasure to serve you in Richmond.

Sincerely,

David Toscano

Democratic plan remains before the Body

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