Posted: June 23, 2003


By Celia Cohen

Grapevine Political Writer

A sizable tax package that Gov. Ruth Ann Minner wanted and the legislature delivered to her last week has been signed safely into law, but only inside Legislative Hall is there an understanding of what a close call it was.

It is because of an episode that is becoming known in Dover as "John Viola's Phantom Vote."

State Rep. John J. Viola is a three-term Democrat, a favorite of labor with a district in the Newark-Glasgow area. He is someone who has been in the General Assembly long enough to be coming into his own, or in other words, to pull a fast one if he wanted.

Viola was not expected to have much of a part to play in the consideration of the tax package in the state House of Representatives -- not beyond being one of a solid Democratic bloc of votes that Minority Leader Robert F. Gilligan was rounding up for his governor.

The tax package -- four bills that would generate $145 million from corporate taxes and fees, cigarette sales and casino revenues -- came before the House last Tuesday, June 17. Along with a series of spending cuts, the legislation was expected to mean a balanced budget for the next fiscal year at a time when nearly all the states are experiencing financial shortfalls.

Tax legislation is harder to pass than most, usually requiring a three-fifths supermajority vote, or 25 of the 41 representatives. Still, the bills had strong bipartisan sponsorship in the House leadership, and there were expected to be enough votes among the chamber's 29 Republicans and 12 Democrats for passage, even though a small band of Republicans led by Rep. William A. Oberle Jr. was maneuvering feverishly to stop it.

The tension was heightened because William Swain Lee, the Republican candidate for governor, paid an unexpected visit to Legislative Hall in a last-ditch effort against the tax package. It had helped to keep the House Republicans bickering in a closed caucus for hours.

The stickiest vote was the one to raise cigarette taxes from 24 cents to 55 cents a pack, estimated to mean about $29 million in new revenue. Not only was there the ingrained reluctance to raise taxes, but cigarettes have been a sore subject in Legislative Hall since the smoking ban was enacted last year.

The cigarette-tax bill was the last to be considered. The others had been approved. All 12 Democratic votes were needed, including those of the four legislators who sided with the smokers earlier this year in a futile try to relax the smoking ban. Viola was one of them.

The roll was called. The House votes in alphabetical order, the members responding aloud as Chief Clerk JoAnn M. Hedrick reads their names. The voting was tight as she called on Viola.

In the back of the chamber where Viola sits, people thought they heard him vote "yes." In the front of the chamber, where the leadership and the chief clerk sit, people thought they heard him vote "no."

"Mr. Viola, no," Hedrick announced.

There was immediate consternation. Without Viola's vote, the bill would fail. Throughout the chamber there was a rustle. Most of the words being spoken could not be made out, expect for one that was said repeatedly. Viola. Viola. Viola.

Oberle, sensing an opening that could kill the bill, demanded a recess. Republican Majority Leader Wayne A. Smith, trying to save it, said a recess wasn't needed. There was a breathless pause, and then Gilligan -- with a gulp and a stutter -- came up with a take-charge move worthy of a wink from Lyndon B. Johnson, one of the greatest legislative floor managers ever.

"Rep. Viola's . . . how . . . how . . . how do you have Rep. Viola voting?" Gilligan asked.

"Mr. Viola, voting no," Hedrick said.

"He's voting yes," Gilligan said, assertively this time.

That was too much for Oberle. "Mr. Gilligan voted for Mr. Viola?" he said.

"No, he did vote for himself. It was mis-recorded," Gilligan said.

Republican House Speaker Terry R. Spence stepped up then, asking Viola to stand and give his vote.

"I voted yes," Viola said.

"OK," Spence said, and there seemed to be relief in his voice.

Spence declared that the bill had passed the House. Along with the other tax measures, it was sent to the Senate, which approved the package the next day. The governor signed all the legislation into law the day after that.

Viola in an interview insisted he voted "yes" all along. In the official tape recording of the proceedings, it sounded as though Viola did vote "yes," but as he spoke, an open microphone somewhere in the chamber picked up the chatter of someone else saying "no," and that is what the chief clerk apparently heard.

"Somebody said a 'no' into the mike, and it overshadowed. I'm not one to stir that much," Viola said.

The identity of the phantom naysayer and whether it was mischief-making or simply coincidental are unlikely ever to be known. Whatever happened, it made what would have been a nerve-wracking roll call in any case even more so.

"I think it may be the first time anything like this has happened," said Hedrick, the chief clerk, "and it happened on something this important."