by Emilio Jaksetic

On November 13, 2025, Bacon’s Rebellion posted an article by The Jefferson Council entitled “Spanberger’s Political Amnesia.” That article criticized Governor-elect Abigail Spanberger’s letter to the University of Virginia’s (UVA) Board of Visitors (BOV) in which she asked the BOV to refrain from choosing a new President for UVA until she can appoint new members to the BOV. The Jefferson Council succinctly identified the political double standard displayed by Governor-elect Spanberger’s request by comparing it to the political hardball efforts of Virginia Democrats to make significant post-election decisions and appointments affecting UVA before then Governor-elect Youngkin could become Governor.

The Jefferson Council’s discussion of the political aspects of Governor-elect Spanberger’s letter is apt and noteworthy. However, it is important to also consider how her letter also raises serious rule-of-law issues. Why? Because although Governor-elect Spanberger’s letter may appear to be reasonable on the surface, it is problematic when viewed in the context of the Virginia Constitution and the Virginia Code. What follows are the reasons why I assert Governor-elect Spanberger’s letter poses a threat to the rule of law.

First, Governor-elect Spanberger’s electoral victory in November 2025 gives her the right to take the oath of office and become Governor at the end of Governor Youngkin’s term, but it does not give her any legal basis to exercise any authority that an incumbent Governor possesses. The authority and power of Virginia’s Governor rest with the incumbent Governor, not a Governor-elect. Governor Youngkin’s November 13, 2025, letter to Governor-elect Spanberger properly points that out. But beyond the traditional practices referred to by Governor Youngkin, there is an important rule-of-law aspect involved.

The idea that a Governor-elect is not yet the Governor is more than a mere truism. It reflects an important legal distinction.

In the period between (a) when a person is officially declared the winner of an election, and (b) the time when the winner of an election takes the oath of office, there is a crucial difference between (1) an official who wins re-election, and (2) a non-incumbent who is elected to an office. During that period, an incumbent official who wins re-election continues to possess the lawful authority of the office, but a non-incumbent person who is elected to an office does not possess any of the authority of the office until he or she takes the oath of office — and only then can he or she lawfully claim to exercise the authority of that office. Between the time of being declared winner of an election and the time of being sworn into office, a non-incumbent winner has no more right to presume to exercise the authority of an office than does any other private citizen in Virginia.

Although factually distinguishable, there are some Virginia Supreme Court decisions that are useful to illustrate and better understand the legal significance of the distinction I am discussing. In County of Fairfax v. Fleet Industrial Park Limited Partnership, 410 S.E.2d 669 (1991), the Virginia Supreme Court concluded that an ordinance cannot give a private citizen or group the right to veto a decision made by a County. (See 410 S.E.2d at pages 672-673.) Furthermore, in Elizabeth River Crossings OPCO, LLC v. Meeks, 749 S.E. 2d 176 (2013), the Virginia Supreme Court concluded that the General Assembly cannot enact a statute that delegates legislative power to a private entity. (See 749 S.E.2d at pages 189-190.)

Because any statute or ordinance cannot confer on a private citizen or group any authority to exercise governmental power or veto an official decision, it follows a fortiori that a private citizen or group cannot unilaterally presume to have such authority. The reasoning of those Virginia Supreme Court decisions bars any non-incumbent winner of an election to office from presuming to have any authority to participate in, veto, or otherwise intrude on (1) a decision of the incumbent they will succeed, or (2) the decision of any other Virginia official or entity with governmental authority.

Second, nothing in the Virginia Constitution or the Virginia Code states or implies that the lawful authority of incumbent officials to make decisions and take official actions can be questioned, suspended or delayed merely by the fact that a new person has been officially declared the winner of an election. Furthermore, nothing in the Virginia Constitution or the Virginia Code gives a Governor-elect any special status, authority, or right to insist that any governmental official or entity should suspend, delay, or otherwise refrain from making decisions or take actions authorized by Virginia law.  Indeed, the Virginia Constitution, Article I, Section 7 expressly states no one has the authority to suspend the laws or the execution of the laws without the consent of the representatives of the people (i.e., the General Assembly).  Since incumbent Virginia officials (including an incumbent Governor) lack authority to suspend the laws or the execution of the laws, a Governor-elect cannot presume to have such authority,

Third, Governor-elect Spanberger is seeking to indirectly exercise authority that she will not possess even after she officially becomes Governor. The Governor appoints members of the governing boards of public institutions of higher education, subject to confirmation by the General Assembly. (See Virginia Code, Section 23.1-1300.A.) Furthermore, the Governor can remove a member of such a governing board “for malfeasance, misfeasance, incompetence, or gross neglect of duty.” (See Virginia Code, Section 23.1-1300.C.)  However, the Governor is not given any authority to direct, control, override, or otherwise interfere with a governing board when it exercises its powers under the Virginia Code. 

Significantly, Governor-elect Spanberger’s request seeks to impede or interfere with the BOV’s independent statutory authority to select a new President of UVA under Section 23.1-1301 A.3. (“Appoint the chief executive officer of the institution.”). The BOV is not required to gain the agreement or approval of a Governor to exercise its authority under Section 23.1-1301.A.3. Whatever opinions a Governor or Governor-elect might have about a BOV’s decision to appoint a new President for UVA, those opinions are not legally binding on the BOV.

Fourth, Governor-elect Spanberger questions the authority of the BOV to continue to take action to select a new UVA president. She does so by contending (1) the BOV cannot act lawfully until she appoints new members to the BOV, and (2) the BOV is failing to take into consideration or ignoring the fact that UVA’s Faculty Senate and the Student Council have issued votes of no confidence in the BOV. I will address each point in turn.

As to the first point, Governor Youngkin’s November 13, 2025 letter to Governor-elect Spanberger contends her assertion that the current BOV lacks authority to act “has been rejected by the Court of Appeals of Virginia.” Governor Youngkin’s letter does not provide the caption of the case, the date of the Court of Appeals decision, or a legal citation to the decision. I have been unable to identify and locate that decision and cannot express any opinion on its legal relevance to the issue. I will assume that Governor Youngkin refers to that court decision based on legal advice of the Attorney General. Apart from that assumption, I will note that Governor-elect Spanberger’s letter seems to miss the relevance of Virginia Code, Section 23.1-1300.A. Specifically, Section 23.1-1300.A. provides that “Members appointed by the Governor to the governing board of a public institution of higher education shall continue to hold office until their successors have been appointed and qualified.”

That statutory provision seems to indicate that vacancies do not render a BOV helpless and without lawful authority to act until all new members are appointed and confirmed. Furthermore, the UVA BOV is authorized to meet with a quorum of five members. See Virginia Code, Section 23.1-2202.B. Since the Board is authorized to meet with a quorum of five members, it would be unwarranted to conclude that the Board could legally meet with such a quorum but would somehow lack authority to make decisions or take actions at a meeting with such a quorum.

As to the second point, nothing in Virginia Code, Section 23.1-1301.A.3. states or implies that the BOV’s decision to exercise its powers under that provision require the approval or concurrence of the institution’s faculty or student body. Accordingly, the BOV does not need to consider or abide by the opinions of the UVA Faculty Senate or the UVA Student Council with respect to any decision about choosing a new President for UVA. Governor-elect Spanberger’s reference to no confidence votes by the Faculty Senate and the Student Council may have rhetorical effect, but those votes of no confidence are legally irrelevant and pose no legal bar to a BOV decision to hire a new UVA President. Furthermore, because the BOV is an appointed body (subject to confirmation by the General Assembly), the legitimacy of the BOV’s actions in selecting a new UVA President cannot be fairly questioned by Governor-elect Spanberger’s claim of the need to ensure “the confidence of the citizens of the Commonwealth.”

In conclusion, Governor-elect Spanberger’s letter to the BOV is a political document that lacks legal force and cannot bar, and should not hamper, the BOV from carrying out its statutory authority to select a new UVA President. Governor-elect Spanberger’s letter to the BOV is merely the equivalent of a political “brush-back pitch.” If Governor-elect Spanberger’s letter succeeds in intimidating or deterring the BOV in its effort to select of a new UVA President, then imagine the cumulative, devastating effect on the rule of law in Virginia if her example were to be followed by other non-incumbent winners of Virginia elections who presume to act similarly before they take their oath of office. 

Actions motivated by politics should not be allowed to interfere with, or impair, the rule of law. If the rule of law is allowed to be subordinated to the dictates of party politics, Virginians will suffer the grim consequences of the rule of hardball partisan politics throttling and crippling the rule of law.

Emilio Jaksetic is a retired attorney residing in Northern Virginia.