Virginia Democrats and Republicans—along with pretty much everyone else of note not named Joe Lieberman—agree: Gov. Ralph Northam must go. There’s been little mercy for the Democratic governor after a conservative website revealed Friday that his medical school yearbook page featured a photograph of someone in blackface and someone else wearing a Ku Klux Klan robe. (Northam denies dressing in either of the racist costumes; he has, however, admitted to wearing blackface while dressing as Michael Jackson for a dance party.)
The problem? Northam says he plans to serve out the remainder of his term, and there’s little if anything that state lawmakers can do to force him out. According to legal and political scholars, Virginia’s state Constitution provides only two paths to removing a governor from power, neither of which seem to apply to the discovery of a decades-old racist photograph. Indeed, Virginia Republicans, who hold a narrow advantage in both legislative chambers, have already said they have no plans to use either to oust Northam. “I think there’s a rightful hesitation about removal from office because obviously you have to consider that to some degree you’re overturning an election,” House Speaker Kirk Cox told reporters Monday morning.
Let’s take a closer look at the two options, and why both have their limits in this scenario.
The relevant portion of the state Constitution is Article IV, Section 17, which reads (emphasis mine):
The Governor, Lieutenant Governor, Attorney General, judges, members of the State Corporation Commission, and all officers appointed by the Governor or elected by the General Assembly, offending against the Commonwealth by malfeasance in office, corruption, neglect of duty, or other high crime or misdemeanor may be impeached by the House of Delegates and prosecuted before the Senate, which shall have the sole power to try impeachments.
As University of Richmond law professor Carl Tobias told USA Today over the weekend: “There is nothing in his service as governor that satisfies those term.” University of Virginia politics professor Larry Sabato came to the same conclusion on Monday.
Impeachment is, in practice, as much of a political process as it is a legal one, but it’s nearly impossible to imagine lawmakers would want to set this kind of precedent. Virginia Republicans, for one, would have a difficult time declaring decades-old blackface a “high crime or misdemeanor” given the GOP-led Virginia Senate recently continued its tradition of voting to honor Robert E. Lee “as a great Virginian and a great American.” Meanwhile, a precedent that bases impeachment on past racist actions would cause a major headache for their GOP colleagues in Washington, given Steve King is still in the House, Cindy Hyde-Smith is in the Senate, and Donald Trump is in the White House. Another basis for impeachment could be to hold Northam accountable not for the blackface but for lying about it during the ensuing controversy. It would still be a stretch, however, to elevate that obfuscation into an impeachable offence under the Constitution.
Whenever the Attorney General, the President pro tempore of the Senate, and the Speaker of the House of Delegates, or a majority of the total membership of the General Assembly, transmit to the Clerk of the Senate and the Clerk of the House of Delegates their written declaration that the Governor is unable to discharge the powers and duties of his office, the Lieutenant Governor shall immediately assume the powers and duties of the office as Acting Governor.
That provision was meant as a failsafe should the governor become physically or mentally incapable of carrying out the job. That makes it an even less viable route to removing Northam. Furthermore, Northam could effectively appeal any such written declaration with one of his own. That, in turn, would require three-fourths of both chambers to vote to oust Northam.
All things considered, then, the best and maybe only way to get Northam out of office is to convince the governor to resign. Last weekend made clear that’s easier said than done, but it also beats the alternatives.
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