The Senate adjourned yesterday without nominating a new justice for the Supreme Court of Virginia and without drawing new boundaries for our congressional districts. Thus, a federal district court judge will draw those boundaries and Gov. McAuliffe will be free to re-appoint Judge Roush until the next General Assembly sits in January, by which time the senate may be under Democratic control.
Before we consider what kind of legislative
nightmare compromise might come from a split assembly, however, let’s take one step back and ask what may be a pertinent question: did the Senate actually adjourn? It’s a question because the constitution of Virginia appears to say they can’t adjourn without permission from the House (and vice versa, for that matter).
Article IV. Legislature
Section 6. Legislative sessions
The General Assembly shall meet once each year on the second Wednesday in January. Except as herein provided for reconvened sessions, no regular session of the General Assembly convened in an even-numbered year shall continue longer than sixty days; no regular session of the General Assembly convened in an odd-numbered year shall continue longer than thirty days; but with the concurrence of two-thirds of the members elected to each house, any regular session may be extended for a period not exceeding thirty days. Neither house shall, without the consent of the other, adjourn to another place, nor for more than three days.
Now, one might say that the constitution’s permission requirement only applies to regular sessions, not special sessions. That’s not the plainest reading, but one might say it. However, one would then have to say why it has been past practice for the two bodies to pass a joint resolution, extending their permissions to each other, in prior special sessions. No such resolution has been passed in this special session, causing some Republicans to claim that the adjournment was unconstitutional.
Maybe those Republicans are missing their own point, though. Did the Senate adjourn, or was its allegedly unconstitutional action a nullity? It’s important to know which for a couple of reasons: if they did, in fact, adjourn, how can the House now adjourn without acting equally unconstitutionally? With no Senate in session to give its consent, the House must simply remain in session. If so, is the legislature in session? If it is, can the governor use his interim appointment power to re-appoint Judge Roush, or is he precluded by virtue of there being no interim? Indeed, if the Senate’s adjournment was ineffective, then the Senate and the house are both still in session, virtually eliminating the governor’s interim powers. (Republicans have been using this trick, albeit in a constitutional form, in the federal legislature by recessing, rather than adjourning, then “reconvening” every three days for about a minute-and-a-half, to bar interim appointments by the president.)
Who can raise this question, and where? I predict we will see House Speaker Howell raise it in court, by having the House sue the Senate to compel it to reconvene and adjourn by the dictates of the constitution. I doubt he’ll care about needing the Senate’s permission, but he’ll want to have a court’s ruling that the Senate never adjourned, so as to declare any interim action by McAuliffe to be void.
The Democrats may have adjourned in order to avoid having any presumptive “first draft” of a map ready for a judge to look at, as any such map would have been drawn by the Republican majorities of both houses (and vetoed by McAuliffe). Commentators are saying this is a gamble, in the hope that the judge will simply draw a map with neutral partisan bias in it (which Democrats feel is better for them, as the current map favors Republicans). It’s a clever procedural move, but only if the Senate’s adjournment is legally valid. It may not be valid and, I predict, we’ll hear more about it before the next congressional boundaries are finalized.