One Person Can Make a Difference ... and How!

 

Vigil --  Justice Ruth Bader Ginsberg

September 20, 2020

We are here tonight to pay our respects to a righteous woman who led the way for all of us.

Justice Ruth Bader Ginsberg’s dedication to her vision of an America where we are all truly equal --- where our policies and our laws do equity --- left us in a profoundly better place than she found us.  It is not an overstatement to say that, as Thurgood Marshall was the leading legal mind of the civil rights movement, Ruth Bader Ginsberg was the leading legal mind of the women’s rights movement.

At the ACLU, in Virginia and nationally, we are grieving Justice Ginsberg’s death as the death of a member of our family.  She was the first director of the ACLU’s Women’s Rights Project – a project founded only because of her unrelenting advocacy.  She assumed that position in 1972 and by 1974 the ACLU nationally had brought 300 cases challenging gender discrimination. Her strategy was an inclusive one … helping the mostly male judges understand that men and women (and non-binary people and transgender people) all are adversely affected by sex discrimination … by the limiting stereotypes that undergird traditional views of gender and sex.

For me personally, I know that I have experienced opportunities that I would not have had but for Justice Ginsburg’s advocacy. I am also grateful that opportunities that I was denied because I am a woman (like being able to attend UVA or any Ivy League school as an undergraduate or being able to get credit in my own name when I was a new law graduate) are now open to other women because of Justice Ginsberg’s legal leadership.  

For all of us, Justice Ginsberg’s death has us asking with trepidation … what does the future hold? Who will light the way forward?

For those who are tempted to see Justice Ginsberg’s death as the extinguishing of a light, I ask you to see it as the passing of the latern. Reach out and hold the light high so others can follow.

For those who are tempted to see Justice Ginsberg’s death as the end of a race, I ask you to see it as the completion of the lead off leg in an important relay. Reach out and accept the passing of the baton so that you can carry it forward and pass it to the next runner.

For all of us tempted to give in to hopelessness, I encourage you to remember Bryan Stevenson’s advice that hopelessness is the enemy of justice.  We must remain optimistic to do the work ahead.  We must be resilient.

I recently read an article in the NY Times by Eilene Zimmerman that asked why some people are more resilient than others. Zimmerman wrote that the “most resilient among us are people who generally don’t dwell on the negative, who look for opportunities that might exist even in the darkest of times.”  “Dedication to a worthy cause or a belief in something greater than oneself” also enhances resilience.  Zimmerman advised focusing energy on what can be changed and looking for meaningful opportunities in any difficult situation. And, she pointed out that resilient people don’t “go it alone.” Resilient people find or develop a support system.

So, let’s leave here tonight drawing resilience from our shared commitment to our worthy causes, promising to look for opportunities even in this dark time, and finding support from those here with us and our allies in the fight for reproductive justice and gender and racial equity. 

Let’s leave here committed to pursuing our cause at the polls in November and in Congress … 

Let’s leave here committed to working harder in the Virginia legislature to make Virginia laws more equitable and to ensuring that, whatever happens in Washington, 

·      our Commonwealth will continue to move away from its racially unjust history,

·      our Commonwealth will continue the work to assure racial justice at the ballot box and in our criminal legal system,

·      our Commonwealth will not go back on our “first in the south” protection of LGBTQ people from discrimination,

and

·      our Commonwealth will not reinstitute burdensome laws limiting women’s access to abortion and basic reproductive health care. 

May Justice Ginsberg’s memory be for a blessing and may her memory be for a revolution.

Playing on the Women's Team

 This is the text of a talk I gave in Richmond at a Mindful Mornings event.  What's most important in the context of this election and elections in Virginia in 2021 is where it ends --- 

"Let’s make a pact here and now that each of us will find and support a woman candidate for governor whose positions on issues we care about are aligned with ours, and refuse now to reject arguments that our candidate can’t win (because she can if we support her).

And, let’s agree not to criticize any woman who is running on her likeability, “electability” or other stereotype furthering basis. Let’s promise each other only to challenge women candidates with whom we disagree on the basis of our substantive disagreement on issues."

Then, and only then,

Only if we play on the women’s team

Can we ALL win.

Mindful Mornings

April 3, 2020

Gender Equity -- Electing Women

Our host, Mindful Mornings Richmond Chapter Founder Becky Crump suggested that I start by talking about who I am and how I came to be engaged in the work I do.

The simple answer is heritage and lived experience.

The heritage part:

I’m the oldest of six, the daughter of a career military officer and a mother who was an “activist” who helped ensure that there was a right to education included in the 1970 revision of the Virginia constitution.

I’m the granddaughter of the first woman to be a statewide Republican committee woman in New Jersey.

I’m also the granddaughter of a woman said to have jumped out of the stands at a high school football game to become the first woman “yell leader” in West Virginia.

And, I’m the great granddaughter of a woman who our family lore says road circuit as an intinerant teacher in Montana with Jeanette Rankin, the woman who went on to become the first woman in Congress when elected in 1916.

The lived experience part:

I went to elementary school when schools in Fairfax County were still legally segregated.

I got my first job when newspapers still said “help wanted men/help wanted women.”

I graduated from high school at a time when Virginia colleges and Ivy League schools were still gender segregated.

Aside:  proud to say now that 2 ACLU cooperating attorneys sued UVA in 1969 to change that.

I entered law school at a time when only 8% of the students were women. (It’s now almost 50%).

As a law student, I had to have my dad co-sign the loan for my first new car, not because I didn’t have the money but because the Equal Credit Opportunity Act hadn’t passed yet and that’s what banks required of women.

While in law school,  I made my first appearance before a Virginia General Assembly to testify in favor of the Equal Rights Amendment,  wearing the bracelet I have on today in celebration of Virginia’s status as the 38^th state to vote to ratify it.

Some firsts for women in my lifetime since I graduated from law school:

1^st SCOTUS justice

1^st state attorney general

1^st woman on the national ticket

1^st black woman U.S. Senator

1^st VA AG/1^st and only VA statewide elected official

1^st US AG

1^st Secretary of State

1^st Speaker of the U.S. House

In 2019, 1^st state legislature to be majority women (Nevada)

In 2020, 1^st VA Speaker and Clerk of the VA House, 1^st president pro tem of the VA Senate

In 1997, I wrote an article called “The View from the Balcony” about how few women were then in the Virginia legislature. At that time, only 15% of the members were women, and there were no woman on House Courts (where decisions were being made about domestic relations, abortion, and criminal laws), or Senate Finance where the budget was written and only one woman on House Rules that set the rules for the House.  The lack of women’s voices showed in what legislation was considered and how it was written.  Example 1995 “prison reform”/”no parole” law.  No women at the table when the bill was being written, not in the legislative committees, not from the AG’s office, not from the Governor’s office.  If there had been women in the conversation, would prevention been a topic of discussion in addition to punishment? We won’t ever know.

Twenty two years later, this year the view and the outcomes are quite different.  Women now make up almost 30% of the legislature. The House Speaker, House Clerk and House Majority leader are all women.  There are five women on House Courts including the chair and vice-chair; six on House Rules, including the Speaker as chair; and five on Senate Finance, including the chair. The President Pro Tem of the Senate is the first woman and first Black person to serve in that capacity. 

And, the impact is evident in the list of legislation that is being considered and passed including:  the ERA; repeal of restrictive abortion laws; new anti-discrimination laws; a pregnant workers’ fairness act; a bill to mandate free tampons and pads for students; an increase in the minimum wage that includes domestic workers; bills addressing school lunch and distribution of excess food; changes in juvenile criminal laws limiting life without parole, trial as adults and custodial interrogation without notice to parents; bill requiring baby changing facilities in public buildings; a bill defining birth control; a bill establishing a Director of Diversity, Equity and Inclusion; bills protecting trans students in schools; a bill regulating doulas and prohibiting health insurers to require pre-authorization to transfer a newborn to another hospital when the child needs specialized care.

All of this is great, of course, but this week should help us all see that our “women’s work” is far from done.

Knowing from our experience what a difference the presence of a critical mass of women and women’s leadership can make – we need to ask ourselves why we haven’t and don’t seem to want to elect a woman to the top job in our state or the nation.

When I talk about wanting to elect a woman governor or president, people often challenge me by asking whether that means I would support a woman who they absolutely know isn’t aligned with me on issues I care about, and, if not, why not?

In my view, however, the right question is not whether I would vote or any woman regardless of her position on issues I care about.  The right question is why a person wouldn’t vote for a candidate who agrees with them on issues they care about just because that candidate is a woman.

A 2019 NY Times poll found that 41% of people said they’d vote for Biden but not Warren over Trump. The reason: women who run for president “just aren’t that likeable.”

In a January 2020 CNN poll 20% of women said a woman could not win the presidency compared to 9% men. This despite the amazing gains made by women in the 2018 mid-term and state elections and the 2019 election results in Virginia.

Why is this? Bottom line, women who run for the presidency (and in Virginia for the governorship) violate social norms – including simply the presumed arrogance of pursuing an ambitious political goal.  These candidates confront what Kathleen Hall Jamison called out as “double binds” like you can’t be both feminine and competent.  You can’t be assertive and nurturing.

Brittany Cooper, a self-described black feminist, writing in Time Magazine argues that Warren’s gender was and should have been an “edge” for Warren and was not irrelevant as some on the left argue. Cooper said, “the experiences one gains from being marginalized because of racism and sexism offer invaluable perspectives that often make candidates inclined to be more egalitarian and inclusive, precisely because they know intimately what exclusion feels like.”

But, the reality is that Warren’s gender was said even by progressives to irrelevant or a disqualifier.

And, a key trope was that people didn’t support Warren because she was a woman, but because of the kind of woman she was.

Haven’t we all heard that before?  And, I’m not referring to Hillary Clinton, although people said that often in 2016 and after.

I am referring to Mary Sue Terry. During her campaign, Patricia Cornwell (yes, that Patricia Cornwell) cut an ad for Terry’s male opponent in the governor’s race in which she literally said that Virginia needed a woman governor “but not this woman.”

Why does this matter? Because as Gail Evans points out in her book “She Wins, You Win,” a woman’s criticism of another woman has a saliency that a man’s criticism would not.

Evans says “every woman must always play on the woman’s team” in the office and I believe in politics. Evans underscores that “every time a woman succeeds your chance of succeeding increases. Every time a woman fails, your chance of failure increases.” Mary Sue Terry’s 17% loss in 1993 and Clinton’s loss in 2016 have made people (including women) more “nervous” about whether a woman can get elected as governor or president.

When women participate in criticizing other women, they perpetuate stereotypes that come back to hurt their own chances of success.

No one gives power away. The more we women help each other the more we all move toward greater success – if we don’t help we all take a step backwards.

So what now? Our choice to elect a woman as the 45^th president has now passed us by.

But there is an election for the next governor of Virginia in 2021.

Let’s make a pact here and now that each of us will find and support a woman candidate for governor whose positions on issues we care about are aligned with ours, and refuse now to reject arguments that our candidate can’t win (because she can if we support her).

And, let’s agree not to criticize any woman who is running on her likeability, “electability” or other stereotype furthering basis. Let’s promise each other only to challenge women candidates with whom we disagree on the basis of our substantive disagreement on issues.

Then, and only then,

Only if we play on the women’s team

Can we ALL win.

The Debates

So, in 2004, I wrote this about the Bush/Kerry debates:

Is it just me or are these guys (Bush/Kerry) lining up at the stop light in their hemi Dodges revving their engines...rearing up on their hind legs like stallions pawing the air with their hooves ... putting their heads down and snorting and pawing the ground... butting heads like two mountain goats... 

guess you get my drift... 
Watching Obama/Romney, Kaine/Allen it seems that not much has changed.  

Is this what Americans really want/expect from our current and potential leaders?

The Price of Inaction

Looking for something else on my blog today, I came across a post that I wrote this in November 2006, that included these comments on a study of the experience of women of color in law firms, almost 50% of whom had reported being subjected to some kind of harassment on the job:

There is open hostility and rising fear out there regarding the rate of change in America .. change that has pushed women into the majority among undergraduates in college ... change that is moving America consistently in the direction of greater population diversity and a reversal of the definition of "majority" and "minority" in some states (California, Texas) and many urban areas (Washington, DC) ... change that is moving America toward greater tolerance, and, ultimately, acceptance of sexual minorities.

This fear and hostility often reveals itself in the treatment of those perceived as less powerful ... women of color, gays and lesbians, immigrants, geeks in schools controlled by jocks, etc.
These folks are like the canaries in the coal mine. Evidence of continued intolerance toward the less powerful (the least of us), especially where such intolerance is accepted or rationalized (whether by faith, homeland security or otherwise), is a powerful suggestion that all is not well in our democracy. 

We who fail to see the signs, those who refuse to speak out against intolerance/injustice where ever it appears, may yet reap a bitter harvest, as those who have power act to keep it and we who remained silent end up like the women in The Hand Maid's Tale consigned to certain roles by the will and force of "the majority."

"The years forget our errors, and forgive our sins, but they punish our inaction with living death." Robert Grudin, Time and the Art of Living

In the intolerant atmosphere of the past legislative session and current election cycle, and in light of the horrific events in a movie theater in Colorado and a Sikh temple in Wisconsin, the thoughts I had then seem particularly salient today nearly six years later.

Pundits' Podium

Proud to have been invited to participate in a new blog sponsored by the Richmond Times Dispatch, Pundits' Podium.   You can follow the blog on Tumblr.

My most recent post on the Podium is how the advice I'd give people thinking about attending law school has changed in recent years.  Bottom line ... if you don't know that you want to practice law, think twice.

Virginia Small Businesses Lose Again?

To his credit, Governor McDonnell has said that making Virginia the best state for small business as well as the best state in which to do business is an important objective for his administration. 


In rhetoric then, Governor McDonnell is a step ahead of his predecessors, who, among other things, drafted economic development strategies with no small business representation (Governor Gilmore did that) and compromised the state's ability to coordinate services to small businesses by cutting the state funding match for the SBA funded small and women business centers across the state (Governor Warner did that). 

Unfortunately, though, two recent actions don't appear to match the Governor's rhetoric or advance Virginia in the direction of becoming the best state for small business:

1) The Governor's decision to use public funds to bring two Amazon distribution centers to Virginia while promising Amazon that it will continue to be exempt from collecting sales tax from Virginia customers; and

2) The Governor's decision to recommend the elimination of the Virginia Small Business Advisory Board while continuing the Small Business Commission.

Unfair Competition
The Amazon decision appears to continue the past practice of elevating the seduction of out of state businesses to come to Virginia over the interests of and support for existing Virginia businesses. Normally, any business with a physical presence in Virginia is required to collect and remit sales taxes for all sales.  According to the Virginian Pilot, however, the Governor has agreed to allow Amazon to avoid this obligation  by using separate corporations to set up the distribution centers:

>... state officials said Thursday that Amazon won't have to pay sales taxes after it builds the new warehouses, either, because the facilities are being built and operated by a separate distribution company, not the actual retail business.  

"This was solely about jobs and economic development here," said McDonnell, calling the sales tax issue a discussion for "another time."

This means that while the Governor has been effusive in welcoming Amazon to the Virginia corporate family, the company will continue to have an unfair advantage over Virginia-based bricks and mortar retail businesses who have no choice but to collect sales taxes and have had to carry the additional burden of paying those taxes on an accelerated basis over the past few years.


According to the Washington Post, the Virginia Retail Federation, the Virginia Retail Merchants and the Alliance for Main Street Fairness have called on Amazon to collect and pay sales taxes whether legally required to or not:

“Every retailer should be playing by the same set of rules and let fair competition determine winners and losers in the marketplace,’’ the association said in a statement. “It is not appropriate for state and local tax dollars to be used as economic development incentives unless Amazon agrees to collect and remit state sales taxes. If they do not make this agreement, Virginia is likely to be a net job loser with this deal.”

Amazon was reported to have gotten $4 million in incentives as a part of the deal to bring 1350 jobs to Virginia.  The question is whether these jobs at this cost, which enhance Amazon's ability to compete in the region, are worth the continued loss of small business sector jobs among Virginia retailers who can't make up the difference customers perceive in the cost of goods because of the tax free internet sales, even though legally the customers are obligated to pay this tax as a use tax when they file their income taxes.


Silencing a Voice for Small Business Owners

The decision to eliminate the Virginia Small Business Advisory Board (VSBAB) is a decision to eliminate the only mechanism that assures Virginia small business owners a direct voice in advising the Governor and the administration on economic development and other policies that affect Virginia small businesses.  

The VSBAB is made up of 14 business owners (11 from each of the congressional districts and 3 at large) who volunteer their time and expertise to advise the Executive Branch regarding small business issues. The Board's members are appointed by the Governor for 4 year terms, and can only serve two terms.  These citizens, of which I am one, bring the real world experience of small business owners to bear on state policies affecting small business. 

The key statutory responsibilities of the VSBAB are to recommend to the Governor and the administration policies that will enhance the "growth of small business" and to be a resource to the Governor and others as they conduct the "economic development efforts of the Commonwealth."  As mentioned above, the lack of a strong small business voice in the administration led to the short-sighted cuts in the state budget  (under Warner in 1992) that ended the state role in guiding the small business centers across the state.  Over the last few years, the VSBAB has provided advice and recommendations to policy makers on the definition of "small business" for procurement and other purposes and successfully argued against the proposed merger of DMBE, DBA and VEDP as not helpful to small businesses.

In contrast, the Small Business Commission is a legislative branch agency made up of 10 legislators and 4 citizens. While the citizens are required to have demonstrated "small business expertise," none of them are required to be small business owners.  The citizen members of the Commission serve two year terms with no limit. The Commission's role is to "study, report and make recommendations on issues of concern to small businesses in the Commonwealth."  The Commission has had a history of meeting rarely or sporadically over the years.

If the Governor's purpose in eliminating the VSBAB is to save money, the fact is that the Small Business Commission costs the taxpayers more than the VSBAB.  Legislative members of the Commission receive compensation of $200 per day for attending meetings plus per diem for expenses ($169 for Senate, $135 for House). Citizen members of the Commission are authorized $50 a day plus expenses.  The Code says that VSBAB members serve without compensation, and members have for the last several years voluntarily refrained from seeking any reimbursement for expenses, unless extraordinary (like travel from far Southwest).

If the Governor's purpose is to enhance efficiency by eliminating duplication, it would make more sense to recommend that the Small Business Commission be eliminated than the VSBAB. The VSBAB is the only mechanism that allows small business owners a direct voice in advising the Governor and the administration on policy. Legislators serving on the Small Business Commission have other means to participate in policy development on committees and subcommittees of the House and Senate that meet regularly during Session and also between sessions.  Citizen members of the Commission are a small minority of the membership and do not have to be business owners.


Conclusion
It would seem, then, that both of these decisions can be seen as adverse to the interests of the small business community and the Governor's express goal of making Virginia the best state for small business.  Both deserve to be reviewed carefully by the Governor and by legislature during the 2012 session with an eye toward leveling the playing field and continuing to afford Virginia small businesses a direct voice in advising on state policies.


NOTE: I serve on the Virginia Small Business Advisory Board having been appointed and reappointed by Governor Kaine.  My current term expires in 2012 whether the Board is continued or not.

Lt. Governor Not a Member of the Senate; Can't Vote on Organization

The question whether the Lieutenant Governor can vote on the organization of the Senate is not a political question but is one of constitutional import.

The Lieutenant Governor is a member of the Executive Branch and is not an elected "member" of "the Senate" as defined in Article IV, Section 7 of the Virginia Constitution. Therefore, it is unconstitutional for him to participate in organizing the Senate since he is not one of the 40 elected Senators who make up "the Senate."

It would also be a violation of the separation of powers clause of the Virginia Constitution, Article III, for the Lieutenant Governor, who is a member of the executive branch of government pursuant to Article V, Section 13, to cast a deciding vote on the organization of a body of the legislature.  As a member of the executive branch, he is specifically prohibited from exercising "the powers properly belonging to the [legislative branch]."


The provision for the Lieutenant Governor to case a vote in the case of an "equal division" does not apply to the organization of the Senate as a legislative "house" since the constitution specifically reserves the organization of the Senate to the "body" and to its elected "members."

I've set forth the constitutional provisions below for information.

Article III
Division of Powers

Section 1. Departments to be distinct.
The legislative, executive, and judicial departments shall be separate and distinct, so that none exercise the powers properly belonging to the others, nor any person exercise the power of more than one of them at the same time; provided, however, administrative agencies may be created by the General Assembly with such authority and duties as the General Assembly may prescribe. Provisions may be made for judicial review of any finding, order, or judgment of such administrative agencies.

Article IV

Legislature

Section 1. Legislative power.

The legislative power of the Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and House of Delegates.

Section 2. Senate.

The Senate shall consist of not more than forty and not less than thirty-three members, who shall be elected quadrennially by the voters of the several senatorial districts on the Tuesday succeeding the first Monday in November.

Section 7. Organization of General Assembly.

The House of Delegates shall choose its own Speaker; and, in the absence of the Lieutenant Governor, or when he shall exercise the office of Governor, the Senate shall choose from its own body a president pro tempore. Each house shall select its officers and settle its rules of procedure. The houses may jointly provide for legislative continuity between sessions occurring during the term for which members of the House of Delegates are elected. Each house may direct writs of election for supplying vacancies which may occur during a session of the General Assembly. If vacancies exist while the General Assembly is not in session, such writs may be issued by the Governor under such regulations as may be prescribed by law. Each house shall judge of the election, qualification, and returns of its members, may punish them for disorderly behavior, and, with the concurrence of two-thirds of its elected membership, may expel a member.

Article V

Executive

Section 13. Lieutenant Governor; election and qualifications.

A Lieutenant Governor shall be elected at the same time and for the same term as the Governor, and his qualifications and the manner and ascertainment of his election, in all respects, shall be the same, except that there shall be no limit on the terms of the Lieutenant Governor.

Section 14. Duties and compensation of Lieutenant Governor. 

The Lieutenant Governor shall be President of the Senate but shall have no vote except in case of an equal division. He shall receive for his services a compensation to be prescribed by law, which shall not be increased nor diminished during the period for which he shall have been elected.

2012 Virginia General Assembly Outlook -- Immigration Policy Issues

Virginia General Assembly

2012 Pre-Session Report

by Claire Guthrie Gastañaga

October 31, 2011

Virginia has a long history of passing legislation to identify and seek removal of unauthorized immigrants, beginning with a law enacted during the eugenics movement that required Virginian's mental health institutions to check immigration status on admission and report to the federal authorities anyone not in the country legally.  Beginning in 2003 and reaching a crescendo in 2008, legislation has been introduced in every session of the General Assembly that directly or indirectly affects Virginia's immigrant communities and those who serve. 

The number and scope of bills has varied depending on political and environmental factors.  The peak year to date, 2008 when over 130 bills were introduced, was driven by hotly contested legislative elections in certain legislative districts in which Democrats and Republicans, alike, made immigration related issues a key part of their campaign platforms and voter communication.  The 2011 election cycle has seen some of the same rhetoric we saw in the 2007 election cycle, and the tone reflects increasing national attention on enforcement only approaches to immigration reform and passage of draconian, wide-reaching legislation in Arizona, Alabama and Georgia.

Over the years, Virginia has enacted nearly 50 laws with direct effects on immigrants and aliens. While positive legislation has passed that deals with human trafficking and wage theft, most of the laws now on the books in Virginia are restrictions on the rights or benefits of "aliens" or immigrants, including the rights and benefits of persons lawfully present in the United States.

Here's a summary of key laws in effect in Virginia and the outlook for legislative action in the 2012 General Assembly Session:

I. Law Enforcement

There have been a series of bills enacted to increase the ability of law enforcement to identify and move toward deportation "criminal aliens" -- documented and undocumented immigrants charged with and/or convicted of criminal violations of Virginia law.  Prior to 2008, Virginia law required immigration status checks after conviction of a crime upon entry into a jail or prison and again as a condition of probation or parole.  Since 2008, Virginia law also requires that immigration inquiries be made of every person taken into custody on a criminal charge. In addition, Virginia is a statewide participant in the Secure Communities program that forwards fingerprints of those arrested to federal authorities for an immigration status check. Another law passed in 2008 establishes a presumption against bail for persons in the country without authority who are accused of committing certain serious criminal offenses.

Passage of legislation increasing the focus on determining the status of individuals taken into custody by police is seen as likely to deter people from coming forward to report crimes or to seek services if they are victims of crime. Legislation intended to mitigate this adverse effect by protecting victims and witnesses to crime has passed the Virginia Senate three times unanimously, but has been rejected in a committee of the House of Delegates. This legislation would have established a statewide policy against routine inquiries into the immigration status of individuals who are victims or witnesses to crime and are cooperating with authorities.

Outlook for 2012 General Assembly Session:

Legislation defeated in the past but likely to be introduced again:

1) bills that give line officers increased authority to take people into custody on minor offenses, including driving without a license;

2) legislation to require or permit immigration status checks whenever someone is stopped lawfully by the police (not enjoined by the Alabama Court); and

3) legislation to provide additional 287g authority at the state and local level.

New legislation likely to be copied from other states:

1) legislation to require that persons caught driving without a license be taken into custody if the police officer cannot confirm, have their status checked by a magistrate and, if found to be in the country without authority, be detained until trial or turned over to federal authorities (not enjoined by the Alabama Court); and

2) legislation to make it a state crime not to carry immigration documents (not enjoined by the Alabama Court).

II. Business and Employment

Demands continue to increase that the General Assembly impose sanctions on employers who hire persons in this country without the legal authorization to work.   To date, Virginia has enacted the following laws that affect Virginia employers and contractors:

1) a longstanding law making it a misdemeanor to hire an unauthorized worker (in effect since1977 but likely unconstitutional);

2) a  requirement that every state and local contractor sign an agreement to abide by federal  immigration laws;

3) authority for the State Corporation Commission to revoke the right of any employer to do business in Virginia if convicted of federal immigration law violations;

4) a requirement that state agencies use e-Verify to check new workers; and

5) a requirement that state contractors with more than 50 employees seeking contracts in excess of $50,000 use e-Verify to check new workers.

Outlook for 2012 General Assembly Session:

The following bills defeated in past sessions are likely to be reintroduced this year:

1) legislation to require all employers, all state and local contractors, and all state license holders (like doctors and lawyers) regardless of size of business to use e-Verify;

2) legislation to authorize private lawsuits or lawsuits by the Attorney General against employers who are alleged to have hired undocumented workers (currently enjoined from going into effect in Alabama);

3) legislation to limit the use of foreign languages in the workplace;

4) legislation to require proof of legal presence to get a business or professional license; and

5) anti-harboring legislation that makes it a state crime to transport or conceal a person who is in the country without authority (currently enjoined from going into effect in Alabama).

New proposals likely to be copied from other states:

1) A bill to establish a state crime applicable to immigrants soliciting work or working without legal authority (an anti-day laborer bill) (currently enjoined from going into effect in Alabama);

2) legislation to prohibit tax deductions for wages paid to an unauthorized immigrant (currently enjoined from going into effect in Alabama);

3) legislation to ban enforcement in court of any contract made with an unauthorized immigrant (with limited exceptions for medical care, food) (not enjoined by the Alabama Court); and

4) legislation to make it a crime to enter into a business transaction with an unauthorized immigrant (not enjoined by the Alabama Court).

III. Social and Medical Services

Virginia passed a law in 2005 requiring proof of legal presence for state welfare and medical benefits.  Other legislation to limit access to services by undocumented immigrants has been unsuccessful, but remains a perennial topic of legislators.

For the first time in the 2011 legislative session, there was interest on the part of some legislators, immigrant advocates and health care providers in closing the loophole that disqualifies legal immigrants for Medicaid until after 5 years of residence.   Preliminary studies show that investing in preventive care, particularly for pregnant women, can reduce long term costs imposed on the health care system.

Outlook for the 2012 General Assembly Session

Bills considered in past sessions and likely to be reintroduced this year include:

1) legislation to require all recipients of state and local funds to insure no services paid for with such funds were made available to anyone not lawfully present;

2) legislation to restrict the ability of state and local agencies to offer services or print materials in languages other than English, potentially driving up the cost for service providers that are recipients of federal assistance required to provide language access;

3) anti-harboring legislation that would impact the ability of charities to offer food, shelter or transportation to anyone in the country without authority (currently enjoined from going into effect in Alabama);

4) "anti-sanctuary" laws that authorize individual state and local employees to report alleged immigration law violations and prohibit interference in such private action by state or local officials; and

5) positive legislation to expand eligibility for Medicaid benefits for some legally present immigrants.

IV. Education

Virginia has long had in place strict domicile requirements that make it impossible for undocumented students to qualify for in-state tuition at Virginia colleges.  All of the four year institutions currently have policies against admitting students who are undocumented, even as out of state students.

Efforts to pass legislation prohibiting admission to public post-secondary education and to codify prohibitions on in-state tuition have been introduced year after year and defeated.

Similarly, legislation to require local school divisions to count students who are foreign born and to require proof of legal presence has been defeated.

A state level "Dream Act" passed the Senate with bi-partisan support but died in the House.  This legislation would have offered tax-paying undocumented Virginia residents who graduate from Virginia schools the chance to be eligible for in-state tuition if they are in the process of adjusting their status.  It would not have overridden policies at the state institutions against admission of such students, however. 

There has been enhanced recognition that there is a need for increased state support for programs to help immigrants along the path to citizenship and full civic engagement, and for additional resources to help local school divisions address limited English proficiency both among school age children and adults.  Ongoing budget shortfalls have crushed hopes for passage or funding of such initiatives but there is continued interest among legislators from impacted localities across Virginia.

Outlook for the 2012 General Assembly Session:

Legislation introduced and defeated in the past likely to be reintroduced includes:

1) legislation to ban attendance at Virginia public colleges by undocumented students;

2) legislation to prohibit undocumented students from qualifying for in-state tuition;  

3) legislation to require local school divisions to ascertain the citizenship or immigration status of all students and to make reports to state authorities regarding the number of undocumented students, the number of foreign born students and the number of students needing English as a second language courses (not enjoined by the court in Alabama); and

4) possibly, the state level "Dream Act," although the negative focus during the 2011 elections on the votes of legislators who previously supported the state level "Dream Act" make it highly improbable such a bill would pass the Senate in the 2012 Session.  There continues to be no chance it would get out of committee in the House of Delegates, even if it were to pass the Senate.

V. Housing

In past legislative session, lawmakers, particularly those from Northern Virginia, have focused significant legislative efforts on measures to "crack down on" those who violate overcrowding ordinances, including giving enhanced enforcement tools to zoning administrators, increasing fines for violators and enacting new limits on the number of unrelated persons who may live in a single family home.

Little thought has been given to the precedent set in each of these areas, the probability of disparate enforcement or the likely long term adverse effect on the availability of affordable housing of such measures. As the availability of affordable housing continues to atrophy, there are quality of life implications that have not been carefully considered in the emotionally charged atmosphere that continues to permeate this discussion.

Outlook for the 2012 General Assembly Session

Legislation copied from other states likely to be introduced this session:

1) restrictions on contracting by or with undocumented persons that would make unenforceable contracts for sale or lease of real estate (not enjoined by Alabama court); and

2) legal presence requirements for real estate sales or leases.

Was Columbus Really a Jewish Nobleman?

Columbus Day and the Jewish high holy days are just behind us.  Got me thinking about a note I posted to Facebook last year, and I decided it was worth republishing in my blog this year. 


Here it is:


I just finished reading a Da Vinci Code type book about Columbus, Codex 632, by Jose Rodriques Dos Santos, translated from Portuguese. While not a great book and a sometimes tedious read, the book, reviewed in the Post here, posits the theory that Columbus was a Portuguese nobleman with Jewish heritage who was forced to hide his real identity.

But there were some historic facts to learn along the way. Among other things, the book taught me something that I didn't know before ... that Columbus' voyage to America was launched at the same time Jews were expelled from the Iberian peninsula by the Spanish monarchs. His diary of the voyage to discover American begins: "In the same month in which their Majesties [Ferdinand and Isabella] issued the edict that all Jews should be driven out of the kingdom and its territories, in the same month they gave me the order to undertake with sufficient men my expedition of discovery to the Indies."

The Spanish expulsion order of 1492, forced 200,000 Jews to leave the Iberian peninsula or convert (or pretend to convert) to Christianity (hence the term New Christians used to descibe some Jews remaining in Portugal in the 15th century).

Once again it becomes clear that religious intolerance and persecution is not a sometime thing. Nor is it a fault of one religion. So, even bad fiction can open your eyes to new learning that provides additional perspective from which to view current events.

Steve Jobs: How to live before you die | Video on TED.com

Steve Jobs commencement speech at Stanford. Worth watching. A man of keen insight, vision and a strong, integrated sense of self.
Steve Jobs: How to live before you die Video on TED.com

Mandatory E- Verify: A tale of strange bedfellows?

So, there was a markup on the new federal  E-Verify mandate bill in Congress this week. Most national employer groups have now decided to throw in the towel and lobby for a single national E-Verify mandate with substitution of the electronic system for the paper I-9 system and preemption of state/local mandates. 

In an interesting turn of events, however, tea partiers and their allies have warned Republicans not to push the bill, though.

According to the report from the American Independent ("state politics in context"), their arguments seem so far "right" that they are "left":

The letter, which identifies its signatories as “pro-freedom, limited government, and Constitutional government organizations,” lists five reasons for opposing E-Verify:

We are alarmed that E-Verify poses a threat to both the Constitution and every law-abiding citizen of this country because it:

1. Creates a de facto national I.D. System – even for citizens;

2. Violates individual civil liberties such as the right to work and free speech;

3. Mandates a costly job-killing regulatory burden that cripples small business

4. Requires employers to become enforcement agents of the federal government;

5. Encourages identify theft of law-abiding citizens

While the letter reflects fears of an overreaching federal government typical of modern conservative ideology, many of the points raised in the letter are echoed by liberal Democrats and immigrant rights activists who have consistently opposed mandatory implementation of E-Verify.

For more on how "liberals" see the E-Verify issue, see the Immigration Policy Institute's assessment of the impact of mandatory E-Verify on Virginia' s economy.

Thinking About the Budget -- Some Voters See Fairness Where Others ... Not So Much

The new Quinnipiac University poll is out today. The results getting the most attention concern voter support for the proposed rules the Board of Health will vote on tomorrow that will require doctors and clinics providing abortion services to have facilities comparable to hospitals.

But unreferenced in the press release and not highlighted in the press conference on the poll held today are some interesting disparities that the poll reveals regarding the way women and black voters see the state budget. These disparities were also evident and uncommented upon in the first Quinnipiac poll done in Virginia in June.

Both the June poll (question 19) and the one released today (question 23) asked registered voters whether they "think that the state budget is fair or unfair to people like you." The overall trend among all voters surveyed is toward "fair" with the twelve point increase in voters who see it as fair coming largely from voters who said in June they didn't know or didn't have an answer. There are, however, striking disparities between women and men and black and white voters surveyed.

In the poll released today, only 43% of women said they think the budget is fair to them (vs. 67% of men), a 24 point disparity, and only 35% of black voters (vs. 60% of white voters), a 25 point disparity, think the budget is fair to them. While slightly more women voters now think the budget is fair to them than did so in June (43% of women vs. 36% of women in June), a smaller percentage of black voters do (35% of black voters vs. 38% in June). And, a higher percentage of black voters now thinks that the budget is unfair to them 57% vs 40% in June, with the increase in those thinking it is unfair coming from those who said in June they didn't know if it was fair or unfair to them.

Both the June poll (question 20) and the one released today (question 24) also asked "what do you think about the cuts in state spending in the budget? Do you think the cuts in state spending go too far, not far enough or are they about right?" Again, the overall trend is toward "about right" with 40% of those surveyed responding "about right" in September and only 29% giving that answer in June.

Nonetheless, black voters views have remained virtually unchanged with 42% saying "too far" in September vs. 41% in June, 18% saying "not far enough" vs. 19%, and 29% saying "about right" vs. 27%. What has changed, however, is the disparity between their views and those of white voters. The percentage of black voters responding that the cuts have gone "too far" is now 21 points higher than white voters, up from 16 points in June ( 42% of black voters responded that the cuts had gone "too far" in September vs. 21% of white voters).

  Similarly, there is an increasing disparity in the percentage of women vs. men who think that the cuts have gone "too far." 30% of women vs. 20% of men responded that way in September and 33% of women vs. 25% of men responded that way in June. And, although the percentage of women who think that the cuts are "about right" has risen, the disparity between women and men who think that the cuts are "about right:" has risen from 9 points in June to 12 points in the poll released today.

So, the question is what accounts for these disparities in the way people think about the state budget? The simplest answer may be what you see depends on where you stand.

Perhaps it is the case that women and African Americans in Virginia are more likely to experience the real impact when the strands of the safety net are being cut out from under them, so they may "feel" the cuts more directly. I don't know, but I do think it is important to ask the question and seek to discover the answer.

A Decade in the Wlderness-Senate Redistricting Outcomes

Incumbent-centered, partisan redistricting has all but guaranteed that Virginia progressives will be lost in the legislative wilderness for the next decade or more even as the majority of the Virginia voting public becomes more centrist, or even left of center.

The reality is that, as the Virginia Senate moved to a fragile Democratic majority, progressives actually lost ground on progressive issues, in part because the partisan ground gained by Democrats was at the expense of moderate Republicans. The erosion of moderation on one side of the aisle and the fragility of the majority on the other deprived progressives of the ability to build a bi-partisan issue majority in the Senate on which to move an issue into the much more conservative and more partisan House. Positive legislation progressives were able to get through the Senate on party-line votes was dead on arrival in the House.

With the Democratic majority, progressives were able to hold the line on some issues (notably immigration) by wielding the partisan power of the majority in committee. At the same time, however, the line broke on others because a partisan majority isn’t necessarily an issue majority (e.g., on choice issues) or because fears about the loss of the majority or desires to gain the majority allowed fractional interests to control. Thus, progressives entered redistricting with the best hope for the future being a plan that allowed more contested elections to take place, i.e., a plan that devalued incumbency and set aside party for purpose. That hope was not to be realized.

Now, the outlook for a continued Democratic majority in the Virginia Senate is increasingly bleak, and that outcome, even if it could be achieved, will come at the expense of the further erosion of the possibility of gaining an issue majority on progressive issues. Republican centrists are increasingly rare, having previously been ousted in primaries (like Senator Marty Williams), redistricted out of their seats (like Senator Fred Quayle) or scared “right” by threatened nomination challenges. In the future, so-called “safe,” partisan-drawn districts will elect candidates at the extremes of both parties, and the few swing districts likely will elect candidates focused first on preserving their ability to get re-elected. This is a prescription for a fractious and fragile majority whichever party achieves it.

Looking at the Virginia Senate races, the Republican path to a more conservative majority in the Senate than previously held sway is relatively clear. The path to a continued Democratic majority of any description less so. So far the contested elections in the Senate are all in districts currently held by Democratic Senators except one.

As of now, thirteen (13) Republican incumbents are running without opposition or with only primary opposition within the party: Blevins, Hanger, Martin, McDougle, McWaters, Newman, Norment, Obenshain, Ruff, Stosch, Stuart, Vogel, and Wagner.

Republicans also currently are running without announced opposition in two redrawn open Senate seats (the 13th and the 19th) that lean Republican. Dick Black, John Stirrup and Bob Fitzsimmons are contesting for the nomination to run in the 13th. Incumbent Senator Ralph Smith is moving from the 22nd district to the 19th, where he is currently the only announced candidate. And, to date, Delegate Charles Carrico is the only announced candidate in the Republican leaning 40th Senate District to replace retiring Senator William Wampler.

The number of incumbent Democratic Senators currently running without Republican opposition is eight (8) : Colgan, Deeds, Locke, Lucas, Marsh, McEachin, Miller, Y.B., and Saslaw.

Incumbent Democratic Senators facing announced Republican challengers number twelve (12): Barker, Edwards, Herring, Houck, Howell, Marsden, Miller, J, Northam, Peterson, Puckett, Puller, and Reynolds. Of these twelve, nine (9) (Marsden, Miller, J, Northam, Houck, Reynolds, Herring, Peterson, Puckett, and Barker) are running in districts where more than 50% of the voters supported Governor McDonnell in 2009.

Democrats running in hotly contested primaries to replace Senator Patsy Ticer in the 30th and Senator Mary Margaret Whipple in the 31st will also face announced Republican opposition in the general election. The competition in the 31st will be driven by a self-funding candidate, increasing the expense of defending what should be a relatively safe Democratic seat.

There will be a contested election in the new Republican leaning 22nd Senate District, where Bert Dodson (D Lynchburg) has announced he will run against the winner of what is now a five way Republican primary.

Putting the map together, then, Republicans are currently on their way to electing 16 Senators without opposition compared to 8 Democratic Senators. In addition, the Republican candidate also must be considered the favorite in the new 22nd Senate District which voted almost 64% for Governor McDonnell. That means Republicans need to pick up just four seats in contested elections to take the majority from the Democrats. Of the nine Democratic incumbents running in districts that voted for Governor McDonnell, the most vulnerable incumbent Senators appear to be Senators Reynolds (who will be facing incumbent Senator Stanley), Puckett, John Miller, Houck and Herring.

Added to the dismal district demographics and current political trends is the money advantage Republicans already have, which will only be magnified by their ability to redirect funds from uncontested contests to the contested races.

The sum then is a scenario in which, without more announced competitive candidates (either Democrats or independents) surfacing before August 23rd to challenge incumbent Republican Senators and vie for the currently uncontested open seats, the possibility for a return to a Republican majority in the Senate becomes increasingly likely as we move from summer into fall.

The really sad news for progressives is that any new Republican majority will be decidely more conservative than the previous Republican majority, and a Democratic majority is likely to be preserved, if at all, by a continued shift to the right by threatened downstate and outer ring suburb Senators. Either way, the composition of the Senate in the 2012 General Assembly Session (and for the next decade because of way districts were drawn) will make the possibility of cobbling together a bi-partisan issue majority for any positive forward movement on issues like health care, immigration, civil rights, and eliminating poverty remote. The shift to the right will also challenge efforts to hold back hallmark legislation on the agendas of the Virginia Tea Party and the Family Foundation.

UPDATE: June 20, 2011
Good news: It appears that there will be a Democratic candidate in the 13th Senate District, Shawn Mitchell. It remains to be seen how competitive he will be or how progressive.

Bad news: The number of incumbent Senate Democrats running without opposition drops to seven. Robert Sarvis is challenging Majority Leader Dick Saslaw. It remains to be seen how competitive he will be, but just his presence in the race will keep some of the $$ Saslaw can raise from aiding others with contested races.