Virginia Democrats may go to court over the issue of whether the Lieutenant Governor can break ties on organizational matters in the Senate. As indicated in a previous post, I am skeptical about the merits of this claim.
(Another useful resource on this subject is the website of the National Conference of State Legislatures, which contains a comprehensive list of state legislative chambers which have been tied over the years. Of particular interest here is NCSL’s note that “A lieutenant governor’s vote broke organizational deadlocks in Idaho (1990) and Pennsylvania (1992). There was speculation that the lieutenant governor would determine party control in the Virginia Senate in 1995, but a power-sharing agreement between the political parties was negotiated instead.”)
For present purposes, however, lets assume that Virginia Democrats are correct on the merits. Can they get judicial relief? If this were a question of congressional organization, I would say the answer almost certainly would be no. Federal courts are extremely reluctant to intervene in the internal affairs of the legislature, and have employed a variety of doctrinal methods to avoid doing so. See, e.g., Vander Jagt v. O’Neill, 699 F.2d 1166 (DC Cir. 1983) (refusing to hear Republican challenge to allocation of committee seats in the U.S. House of Representatives).
A Virginia state court might very well decline to consider the merits of the case on similar separation of powers grounds. But there is an even more fundamental problem with the proposed challenge to the Lieutenant Governor’s ability to vote on organizational issues. The most that the court could do is issue a declaratory judgment in favor of the Virginia Democrats. Such relief, however, would not change the position that the Democrats are in. If they don’t think that the Lieutenant Governor has the power to break organizational ties, nothing stops them now from refusing to recognize or participate in an organizational plan that results in a 20-20 tie.
However, whether or not the Lieutenant Governor can break such a tie, the Democrats have the same dilemma. The Republicans have the power to introduce legislation and to pass it on the floor. If no organizational plan were in place, the parties could presumably have separate unofficial hearings and meetings to consider, draft and mark up legislation. The situation is really no different if the Republicans claim that their meetings are official, and the Democrats claim that they are not. At the end of the day, the dispute will not have any effect on the validity of legislation passed by the Senate (or, if it does, that question would have to be addressed after the legislation is enacted). In short, any relief that the court could give would be no more than the Democrats could effectively achieve on their own.
The wise course would be for the parties to reach an understanding on sharing power. For example, they might follow a model similar to that adopted by the U.S. Senate in 2001 (thanks to commenter Rich for reminding me of this) in which committee seats are evenly divided, but the majority party (meaning the VP’s party in the US Senate) retains the chairmanships and the ability to move legislation to the floor. Or they might agree that the Republicans may maintain a legislative majority on committees, but that the Democrats will be given the ability to conduct oversight and investigative activities without permission from the chair.
Some such arrangement would be the wise thing to do, but a court cannot force wisdom on the parties.