General Assembly 2016

Virginia General Assembly building in Richmond

Restoration of Rights Executive Order

May 9, 2016 by David Toscano

Governor Moves to Restore Voting Rights
Republicans Resist

On April 22, 2016, Gov. McAuliffe issued an Executive Order restoring the right to vote to approximately 206,000 citizens who had been convicted of a felony in the past, had served their prison time and completed the terms of their probation. The restoration order applies to citizens who were convicted of a wide variety of offenses, from larceny in excess of $200 to certain driving offenses to robbery and more serious felonies. (Citizens who have their voting rights restored still have a felony conviction record and must still pay their fines and costs; they have not been pardoned or given clemency.)

Many have applauded his action and others have opposed it. For me, the issue revolves around two questions. First, does the governor have the constitutional authority to do this? And, second, is it good social policy to do so? Republicans in the General Assembly immediately challenged the governor’s actions, saying that he lacked constitutional authority to do it, and now are threatening to file suit to block the restorations. Beyond the constitutional issues, some criticism has focused on restoring rights to violent felons, even though they represent a relatively small number compared to the more than 200,000 who had their rights restored.

Restoration of Rights in Virginia

Restoration of rights is widely recognized as a good idea. In thirty-eight other states, the right to vote is generally restored almost automatically following a felon’s release from incarceration and parole. Recent Virginia governors, both Democratic and Republican, have worked to restore the rights of Virginia citizens who had been convicted of a felony, served their time and completed their probation. Governor Warner was able to restore the rights of 3,486 individuals during his term, Governor Kaine restored another 4,402, and Governor McDonnell pushed even harder, restoring the voting rights of 8,111 Virginia citizens. These governors, as well as substantial numbers of Virginians, believe that when a person has served their time, they should regain the ability to vote. McAuliffe’s action accelerated the restoration process dramatically.

Virginia is one of the most restrictive states in the country in terms of restoring voter rights. Before Governor McAuliffe’s Executive Order, Virginia had been unique in its requirement that individuals file individual petitions requesting the governor to act. This process is costly and cumbersome, and inhibits restoration.

There is a long and unfortunate history in Virginia of using the law and the Constitution to prohibit groups of people from voting, targeted primarily at African-Americans following the Civil War and into the 20th century. In fact, the Virginia Constitution of 1902 included provisions on felony disenfranchisement and other voting measures that one prominent legislator commented were designed to eliminate “every negro voter who can be gotten rid of, legally, without materially impairing the numerical strength of the white electorate.”

To address the lengthiness of the process, proponents of restoration have offered a number of solutions, from a constitutional amendment that would grant automatic restoration to various bills in the General Assembly. All of these efforts have been blocked by conservative Republicans who have systematically been increasing barriers to discourage citizens from voting. We have seen a wide variety of initiatives over the last few years designed to make it more difficult for voters to cast their ballot. And in the budget just passed by the General Assembly, Republicans eliminated monies to fund additional positions designed to assist applicants for voting rights restoration. In the face of this resistance, Governor McAuliffe decided to act. But does he have the constitutional authority to do so?

Executive Authority in Virginia

Assessing the legal argument requires us to look first at the actual language of the Virginia Constitution. Article V, Section 12, states that the power to “remove political disabilities…” (restore rights) is vested solely in the Governor. The Virginia Constitution does not limit this sweeping power. Article II, Section 1, provides that “no person who has been convicted of a felony shall be qualified to vote unless his civil rights have been restored by the Governor or other appropriate authority.” Nothing in the Governor’s Order undoes this provision of the Virginia Constitution; today, anyone convicted of a felony still loses their right to vote. The only way that right can be restored is by the action of the Governor or another appropriate authority.

The Republicans have reportedly decided to file a lawsuit challenging the governor’s constitutional authority to issue this sweeping restoration of voting rights. Many attorneys, myself included, are doubtful that this will succeed, and do not support the use of taxpayer dollars in any lawsuit contesting the Governor’s Executive Order. To date, Republicans have spent just under $100,000 of taxpayer money defending passage of a voter ID law which makes voting harder for some Virginians, and the case is not yet concluded. This is in addition to over $3.5 million of taxpayer money spent defending three redistricting lawsuits that would make state and federal districts more competitive. While Republican leaders have said that they will not use taxpayer money to fund a lawsuit against the Governor’s executive order, there is no guarantee this will not change once they have discussed the matter fully with their attorneys.

Social Policy

We are a society that values redemption and second chances. When people have served their time in prison as dictated by the justice system, they are released from incarceration and we should want to see them restored to a productive life. We want them to be able to get a job, support their families, and be involved in their communities in a positive way. Many of these individuals want to find a way to contribute to society and work for a better future. Restoring their right to vote is one way that we can help them do that. Will they register – and will they vote? Only time will tell. But Governor McAuliffe has certainly given them the opportunity once again.

P.S. – If citizens want to register to vote, they can do so online at www.elections.virginia.gov, or go to their local Registrar’s office. If you have a felony conviction, and you want to know if you are eligible to re-register to vote, you can go to www.commonwealth.virginia.gov/ror.

Democrats Sustain the Governor’s Vetoes

April 22, 2016 by David Toscano

General Assembly Retains Focus on Building New Virginia Economy

In Governor McAuliffe’s State of the Commonwealth address in January, 2016, he made clear his priorities for the upcoming General Assembly session. He argued that our focus should be on building a new Virginia economy that is diversified and robust, and investing in education at all levels to encourage creativity and innovation. He also stated that if Republicans in the House or Senate sent him legislation that was socially divisive or that threatened workers’ rights, women’s ability to control their reproductive health choices, discriminatory measures, or bills that transfer public investments from public schools to private entities, he would veto the bills.

The Governor kept his promises. He proposed a budget that included major new investments in ports, airports, and economic incentives. He proposed almost a billion dollars in additional funding for K-12 education, and substantial new investments in higher education. He supported the initiative of private business leaders called “Go Virginia.” During the General Assembly session, both the House and the Senate adopted most of the Governor’s proposals, and even increased funding for others. That was a wonderful example of finding common ground for the benefit of the Commonwealth.

Along the way, however, Republicans passed, as they have done in recent years, a series of measures that would undermine the rights of Virginia citizens. In response, Gov. McAuliffe vetoed 32 pieces of legislation coming out of this session.

During our Reconvene session of Wednesday, April 20, 2016, Democrats sustained every one of the Governor’s vetoes. Among the vetoes that were sustained (this means that the bills will not become law), are measures that would:

Defund Planned Parenthood.
Undermine efforts of the Commonwealth to produce a clean power plan.
Extend inefficient and costly tax credits to coal producers.
Deny localities the ability to contract with private companies to pay a living wage.
Allow discrimination under the guise of religious freedom.
Reverse the Governor’s executive orders to keep guns out of state administrative buildings.
Remove the discretion of sheriffs and local law enforcement in handling immigration detention requests from the federal government.
Place additional barriers on citizen’s ability to register and vote.
Limit the ability of localities to determine the status of monuments in their cities and counties.

In addition, we passed a number of the proposals made by the Governor to change legislation and include new items in the budget. These included new additional monies for bioscience support and initiatives in cybersecurity.

Our efforts to enact a Solar Tax Credit targeted to investment in Southwest Virginia failed in a party line vote, as did the proposal to build a smaller and less punitive juvenile detention center.

Finally, the Governor’s proposal to make it easier to get drugs for lethal injection was passed by the General Assembly. This proposal arose in response to a bill that would make the electric chair the default execution method in Virginia in the event that the lethal injection drugs were not available. The Governor’s proposal proved very controversial because it would keep secret the identities of companies manufacturing the lethal cocktail as well as the components of the mixture. Civil libertarians argued against the measure and this was one area where I departed from the Governor by voting against it. In my career, I have voted against any measure that would expand the death penalty or make it easier to administer. While lethal injection is perceived as less cruel than the electric chair, it is nonetheless replete with all kinds of problems, and there have been many botched attempts using these drugs for execution. Accepting the Governor’s recommendation means that the death penalty will continue to be carried out in Virginia.

Town Hall Meetings

In the next month, I will be convening several town hall meetings to discuss the General Assembly session. I am also available to speak to groups about what we did and did not do in the 2016 session. We will provide more information about times and locations.

The Upcoming Veto Session

April 6, 2016 by David Toscano

Vetoes and Two-Thirds Majority Rule

If you read statewide news, you might have noticed that Governor McAuliffe has been vetoing a bill sent to him from the General Assembly almost every day. We have another two weeks before we return on April 20 for our so-called “veto session.” This is officially referred to as “Reconvene Session” and is the day we assemble back in Richmond to consider vetoes and any changes proposed by the governor to certain bills. In Virginia, we have the “line item veto,” by which a governor can propose changes in portions of individual bills passed by the legislature, including the budget. Sustaining a governor’s line-item change requires a simple majority. If a governor vetoes a bill, the only way it becomes law is for a two-thirds majority in each chamber to vote for the bill “notwithstanding the Governor’s veto.”

Vetoes

Among Gov. McAuliffe’s vetoes are bills that would:

Defund Planned Parenthood;
Undermine efforts of the Commonwealth to produce a Clean Power Plan;
Extend inefficient and costly tax credits to coal producers;
Deny localities the ability to contract with private companies that pay a living wage;
Allow gender discrimination under the guise of religious freedom;
Would reverse the Governor’s executive orders to keep guns out of administrative buildings;
Remove the discretion of Sheriffs and local law enforcement officers in handling immigration detention requests from the federal government;
Place additional barriers on citizens’ ability to register and vote; and
Limit the ability of localities to determine the status of monuments in their cities and counties.

These items are being vetoed by the Governor because they reflect policy choices embraced by a small minority of Virginia citizens or are arguably unconstitutional, or both.

As of April 6, the Governor has signed more than 750 bills and has vetoed over 25 bills from the 2016 Session. By contrast, former Governor Bob McDonnell vetoed a total of 18 bills during his four year administration, and Governor Tim Kaine vetoed a total of 30. One reason for Governor McAuliffe’s numbers rests in the present composition of the House of Delegates and the state Senate, which are both controlled by conservative Republican majorities. By contrast, Governor George Allen, a Republican confronted with Democratic majorities in both the House and Senate, vetoed a total of 51 bills during his administration. Republican Jim Gilmore vetoed a total of 50 bills over four years, despite narrow Republican majorities in the House and Senate during the last two years of his administration. Until recently, many conservative measures passed by the House were then defeated in a more moderate Senate. That dynamic is no longer the rule as conservatives now have a majority in both the House and Senate. The only thing standing in the way of some of this socially-conservative legislation becoming law is Governor McAuliffe’s veto.

Two-Thirds Majority Rule

Overriding a Governor’s veto takes a two-thirds majority in each chamber. That is 67 votes in the House and 26 votes in the Senate. Most observers believe that all of the vetoes will be sustained and that none of these measures will become law, but this will all be determined on April 20.

The Budget and Adjournment

March 11, 2016 by David Toscano

House and Senate budget conferees came to an agreement late Tuesday, March 8, and published their proposed two-year budget on Wednesday in a “conference report.” The agreement contains many good things for which we have fought.

Highlights include:

Major increases in K-12 education funding over the current biennium, including almost $200 million in lottery funding for school divisions, which will greatly help Charlottesville and Albemarle, a 2 percent salary incentive effective December 1, 2016, and additional money for eligible students to receive free or reduced lunch and breakfast at schools.
Major new funding for higher education, including a 3 percent across-the-board raise for faculty. UVA will receive about $10 million for access and affordability, as well as $4 million for the Focused Ultrasound Program, a cutting edge research initiative, and monies for bioscience incentives.
Full repayment to the Virginia Retirement System (VRS) of money the General Assembly borrowed several years ago – a move I voted against – and funding 100 percent of the VRS board-certified contribution rates. Both of these actions will enhance the fiscal viability of the system.
An additional $76.2 million for mental health services.
Fully funding the “Rainy Day Fund,” the special account we reserve for use if Virginia experiences a dramatic economic downturn.
Additional monies for our community colleges to develop new programs to train the workforce of the next decade.
Monies for the “Presidential Precinct,” an initiative developed by UVA, William and Mary, Monticello, Ash Lawn and Montpelier to bring scholars and elected officials from around the world to Virginia to be educated on how democracy works. This is an initiative that I and others in our area have supported, and worked with the Governor to get in his budget.
Major initiatives for job creation through the “GoVirginia” concept. This will allow regions to cooperate in competing for economic development grants and projects necessary to build the New Virginia Economy. GoVirginia creates a great opportunity for our region given the degree to which the University, the city and the county cooperate on policy initiatives.
Monies to fund a new General District Court judgeship in our Judicial Circuit.

In addition to these larger categories, some specific items I proposed are included in the Conference Report, such as:

$900,000 extra funding for court-appointed counsel who take on complicated cases defending indigent clients.
An increase in fees for court appointed mediators.
Support for the Fostering Futures Program, which allows foster care and adoption assistance to be extended for youngsters who would otherwise “age-out” of the foster care program on their eighteenth birthday. Funded with $1.9 million from the general fund (Virginia tax dollars) and $3.9 million in non-general fund money (from the federal government or other sources), the program will benefit a large number of foster children who otherwise might experience tremendous difficulty transitioning to adult life.
Additional money for the Centers for Independent Living. We have a wonderful center in Charlottesville called the Independence Resource Center, and this new money will help the IRC and other centers around the Commonwealth build their programs on behalf of disabled persons.

The largest missed opportunity continues to be the Republicans’ refusal to embrace Medicaid expansion under the ACA. It is ironic that despite their negative rhetoric, our budget does expand some Medicaid services, but in the most inefficient way possible. Under present law, every dollar we appropriate for Medicaid is matched by the federal government with another dollar. Consequently, when we implement new Medicaid spending for substance abuse treatment or to provide new waiver slots for intellectual or developmental disabilities in this budget, we are saying that we trust the federal government to fund its 50 percent of these programs. Yet we still hear the argument that Virginia cannot trust the federal government to continue funding “Medicaid expansion” if it happens under the ACA, where the federal government would pay 90 percent of the costs. This rejection of readily-available Medicaid money has become an article of faith for our Republican counterparts; without a change in the General Assembly’s political composition, Medicaid expansion is unlikely for the next several years.

On Thursday, the General Assembly approved a new Supreme Court Justice after an extremely flawed process. I did not support the appointment and you can see my speech explaining why in the video below.

As the session concludes, I thank you again for all of your input and support over the last sixty days. I am happy to be returning to Charlottesville to be with my family and continue my law practice. I remain available to serve constituents’ needs, and will shortly organize a series of town halls and smaller meetings to discuss the successes and failures of this General Assembly session.

They Did What?

March 9, 2016 by David Toscano

Rumors frequently percolate around the General Assembly building and many of them turn out to be false. One rumor that circulated early Tuesday was that former Attorney General Ken Cuccinelli was being considered for appointment to the Virginia Supreme Court. I considered the rumor so fantastic that I did not even check into it. Boy, was I wrong! In the blink of an eye, without any interview of Cuccinelli or even an indication he was being considered or was even interested, the Senate Courts of Justice Committee certified and qualified him to be eligible for appointment to the Virginia Supreme Court, the first step in the process of formal appointment.

Alarm bells went off throughout the Capitol as word spread of this latest twist to an already-extraordinary situation. On Monday, in a largely party-line vote, House Republicans voted to appoint Rossie Alston, a Court of Appeals Judge from Prince William County, to the Supreme Court. He did not, however, garner the requisite votes in the Senate, and was not confirmed. This followed the unprecedented vote in the House rejecting Justice Jane Roush, who has been fired by the Republicans from the Supreme Court.

The immediate reaction to the news was “what must they be thinking?” If a Cuccinelli nomination occurred, it would violate almost all of our procedural guidelines, and an undeniably partisan person would be elevated to the Supreme Court. We thought judicial selection and appointment was political before, but we were facing the possibility of totally politicizing the process, an extremely concerning development for the Commonwealth.

The surprises aren’t over yet; now Cuccinelli’s name has been withdrawn, and a new name has been brought forward in the Senate. Stay tuned for further developments.