Democrats say it's up to Republicans to draw first blood in an opening-day General Assembly dispute over whether an evenly split Senate will share power or one party will assert a majority.
If Republican Lt. Gov. Bill Bolling votes with his party, as he intends, to break a 20-20 partisan tie in the Senate, a month-old lawsuit lying dormant in a Richmond courthouse comes back to life to challenge Bolling's authority.
In December, a judge refused to pre-empt Bolling's vote, ruling that no harm had been done and it's premature to intervene unless Bolling acts.
Democrats are trying to persuade Republicans to share power by evenly apportioning seats on Senate committees and appointing co-chairmen to rule them instead of stacking them with GOP majorities.
But Republicans, infused with a handful of conservatives elected in November, have yet to budge, and not even the remaining GOP moderates who once worked hand-in-hand with Democrats are inclined to broker a power-sharing deal.
Democrats were still trying, however, before the 2012 session convenes at noon Wednesday.
“I think Republicans know that a majority of people in Virginia don't want one party to be dominant. They want their legislators to work together and share power,” said Sen. Mark Herring, D-Loudoun.
But other Democrats seemed resigned to their minority role, at least for the start of the session.
“What can you do? They've got 21 votes unless somebody doesn't show up,” said Senate Democratic Leader Richard L. Saslaw, D-Fairfax. “We'll just have to see.”
Saslaw, Herring and other Democrats say a rumored Democratic walk-out -- departing the state the way Democratic lawmakers did in Wisconsin last year -- won't happen.
“That doesn't accomplish a thing,” Herring said.
Sen. A. Donald McEachin, the plaintiff in the lawsuit in Richmond Circuit Court, said there's no way to arrange an emergency hearing quickly enough after a Bolling vote for a GOP majority to stop the Republican power grab in its tracks. Besides, he noted, courts are not inclined to tell officials in the legislative or executive branch of government what they can and can't do.
Herring said an appeal to logic and floor speeches seem the best route now. And the Democrats are not without leverage.
Bolling has conceded that the state Constitution forbids him from casting votes on the most important piece of legislation in any session: the state budget. Because legislation fails on a tie vote, at least one Democrat would have to side with the GOP in early March to enact a budget drafted by a Republican governor and legislative majority.
“That seems to be our best leverage now,” Herring said.