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,