by Dick Hall-Sizemore
Leaving aside the issue of whether masks should be required in schools, there is a larger issue in question in this legislative fight over masks.
The plan now seems to be that each house will pass Sen. Petersen’s substitute for SB 739, which would prohibit any school district from requiring students to wear masks to school. Then Governor Youngkin would return the bill with a recommendation that an emergency clause be added, making the bill effective immediately. Each house would then accept the Governor’s recommendation by majority vote. And voila! The kids would be free!
There is just one fly in this ointment: the state constitution. Article IV, Section 13, sets out the effective dates of legislation. All bills enacted in a regular session are to become effective July 1, unless a later date is specified in the bill or “unless in the case of an emergency (which emergency shall be expressed in the body of the bill) the General Assembly shall specify an earlier date by a vote of four-fifths of the members voting in each house.”
The idea that a Governor’s amendment establishing an emergency clause would need only a majority vote seems to be based on a determination announced by Paul Nardo, the Clerk of the House of Delegates. As reported by the Richmond Times-Dispatch, “A governor’s emergency clause used to require a four-fifths vote in the House for passage. House Clerk Paul Nardo said Tuesday that Democrats dropped the rule for the governor under then-Speaker Eileen Filler-Corn, D-Fairfax, and Republicans didn’t reinstate it under new Speaker Todd Gilbert, R-Shenandoah.”
What is being referred to is this:
- Before 2020, Rule 75 of the Rules of the House of Delegates, stated: “A Senate amendment to a House bill to be concurred in, a Governor’s recommendation to be agreed to, or a conference report to be adopted, must receive the same recorded vote as required to pass the bill itself.”
- In the 2020 session, the Democratic majority, for some reason, changed the rule to read: “A Senate amendment to a House bill to be concurred in, or a conference report to be adopted, must receive the same recorded vote as required to pass the bill itself.”
Just because a reference to the vote needed for a Governor’s recommendation was dropped from the Rules of the House of Delegates does not mean that the constitutional requirement of a 4/5 vote for a bill to be become effective before July 1 does not still apply.
I like Paul Nardo. I am glad that he was reinstated as Clerk of the House. But, in this case, he is wrong. But I understand. He is doing the bidding of the folks who got him his job back — House Republicans. In his statement to the press, he was laying the groundwork for a ruling by the Speaker, Todd Gilbert, that only a majority vote is required for a Governor’s amendment.
The Senate Rules could be a little clearer. In an Appendix to the Rules, there is a list of votes needed for various actions.
- For an emergency clause, it says “4/5 of the members voting, not less than” and cites the constitutional references;
- For “Governor’s recommendation for amending bill,” it says, “a majority of the members present.”
A standard rule of interpretation is that, when provisions seem to be in conflict, the more specific provision prevails. In the examples presented above, an “emergency clause” is more specific than just “Governor’s recommendation for amending bill.” However, the presiding officer of the Senate, the Lieutenant Governor, would be free to rule that, based on the latter provision of the Senate Rules, only a majority vote would be required on a Governor’s amendment adding an emergency clause.
In each house, a ruling by the presiding officer can be challenged. In such a case, the entire house votes whether the ruling should be overturned. Rarely, if ever, has a ruling of the presiding officer been overturned.
Is ending immediately a mask mandate in schools that will expire August 1 so important that Republicans in the General Assembly and the Governor are willing to run roughshod over the state constitution?
If any school board is inclined to continue this fight, any emergency bill with less than a 4/5 vote in both houses would be ripe for a court challenge. It could likely find a judge that would be willing to at least grant a stay.