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V

irginia

C

apitol

C

onnections

, S

pring

2017

5

When I attend a meeting of my

local school board, I know that when

the members vote on where to locate the

new middle school, I will know exactly

who wanted Location X and exactly who

wanted Location Y. I will also know

whether a member wasn’t present for the

vote or didn’t vote at all for some reason.

The same is true when I attend my local governing board (city

council, board of supervisors) meeting. And even when I travel

to Richmond to attend the meetings of some statewide board or

commission.

In 1998, the Virginia Supreme Court held that the state

constitution required a roll-call vote on all matters.

Article VII, which deals with local government, says in Section

7, “No ordinance or resolution appropriating money exceeding the

sum of five hundred dollars, imposing taxes, or authorizing the

borrowing of money shall be passed except by a recorded affirmative

vote of a majority of all members elected to the governing body….

On final vote on any ordinance or resolution, the

name of each member voting and how he

voted shall be recorded.”

The Town of Madison said

that the name of each member

present was implied in a

notation that the motion was

“carried unanimously” since

the minutes earlier stated that

“all members were present.”

That is, if everyone was there, and

the vote was unanimous, then the name of

each person and how he or she voted was known.

A majority of Supreme Court justices disagreed, ruling in Town

of Madison v. Ford (255 Va. 429 (1998)), that “the Town’s recital of

a unanimous vote in its minutes does not necessarily demonstrate

that all members present actually voted in favor of the ordinance.”

“Since there is no presumption that all members remained in

the meeting from the time it convened until the vote to adopt the

ordinance was taken,” the court continued, “we cannot determine

which council members were present for the vote or who actually

voted to adopt the ordinance. Additionally, the recitation of a

unanimous vote does not necessarily indicate that all council

members present actually voted in favor of the adoption of the

ordinance.”

The town was an outlier then, and the case remains mostly

anomalous now, as the individual members of local and state bodies

are routinely voting by name on the matters before it.

This is essential information for any member of the public.

Come election time, they need to know whether the votes taken

by the incumbent reflect the voter’s principles and priorities.

They might line up 100% of the time; they might never line up.

More likely, they will fall somewhere in between and, armed with

adequate information about that person’s voting record, an educated

decision can be made in the voting booth.

So it is very difficult to understand why the House of Delegates

in the General Assembly continues to dispose of an overwhelming

majority of its bills on unrecorded voice votes.

The volunteer group, Transparency Virginia (of which I am a

member), released a report in 2015 that shocked a lot of people. The

report found that just over 76% of the bills defeated in House were

defeated on an unrecorded voice vote. That means for more than

two-thirds of the bills legislators were not individually on record for

having supported or opposed the measure.

Anyone who’d spent time around the General Assembly—

lobbyists, activists, advocates, citizens—certainly weren’t shocked

to learn that the practice of killing bills on unrecorded voice votes

was common, but they were shocked at just how common it was.

The practice even intensified in 2016 when the percentage of

unrecorded voice votes on defeated bills climbed to nearly 95%,

though it went down this year to 88%.

Since the first Transparency Virginia report came out, several

other advocacy and journalism outlets have run their own numbers

using data from the Legislative Information System, as did

Transparency Virginia. The analyses reflected small differences

in the final percentage, owing to a difference in how certain

actions were characterized (bills that were left

in committee, those that were stricken

from the docket, for example), but

all have shown that it is by far

more common for a bill to die

without a recorded vote than

with one.

And make no mistake, this

anonymous method of killing

bills affects legislators of all

political stripes on measures of all

ideological bents. Furthermore, the reality

is that huge numbers of bills in the General Assembly

don’t even have political or ideological aims. They are about

everyday matters that have little to do with the big D or R beside a

patron’s name.

But regardless of the bill’s content, the fact remains that

someone thought the bill was a good idea. The patron brought it up,

if not because he or she believed in it, then because a constituent

thought it was a good idea.

When a bill is defeated on a voice vote, every member on that

House of Delegates committee or subcommittee is deprived of the

opportunity to tell the public what his or her position on the bill

was. Voters back home may have been interested in the bill and

seen that their legislator was on the committee hearing the bill. But

when they see that the bill was defeated on a voice vote or left in

committee without action, they are left to wonder, did my legislator

agree with the voice vote? Did my legislator oppose this measure?

Was my legislator even there for the vote?

Because of the Town of Madison ruling, we know that we

cannot assume anything about an unrecorded vote. It tells us

everything and it tells us nothing. Far better to be sure than to be

left guessing.

It is time for the House of Delegates to return to the practice

of requiring recorded votes for bills being advanced and defeated.

Megan Rhyne has worked for the Virginia Coalition for Open

Government since 1998 and became its executive director in 2008.

Before that, she served as an opinions editor for Texas Lawyer in

Dallas, as a freelance writer for Androvett Legal Media in Dallas

and the National Law Journal in New York, and as an adjunct

professor of media law at Hampton University's journalism school.

Her law degree is from the University of Colorado-Boulder, and

she was a radio, television and motion pictures major at the

University of North Carolina-Chapel Hill.

Open Government

By Megan Rhyne

Mimi Merritt was born and raised in Southampton County, VA. She

has a B.A. in English fromDuke University and an M.A. in journalism

from the University of North Carolina at Chapel Hill. Since 2001,

she’s been an assistant professor of communications at Bluefield

College and now serves as Dean of Institutional Effectiveness.

Editor's Note: https://docs.google.com/document/d/10eA5- mCZLSS4MQY5QGb5ewC3VAL6pLkT53V_81ZyitM/ edit?usp=sharing

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