by Hans Bader
Virginia’s state senate had a narrow Democratic majority, with 21 Democrats and 19 Republicans. Then, on January 1, Republican Sen. Ben Chafin died. Virginia’s Democratic governor has deliberately delayed filling the seat so that progressive bills will be able to pass the state legislature more easily, and without being moderated by the amendment process.
Keeping the seat vacant will make it easier to pass progressive bills even when not all Democrats vote for them — such as when a relatively moderate Democratic senator votes against a bill to release criminals earlier. That occasionally happened in 2020, such as when a Democratic senator voted against lowering the age of geriatric release for some criminals to age 50.
Keeping the seat vacant ignores the governor’s duty to call special elections to fill vacancies that result from a legislator dying. Virginia Code Section § 24.2-216 provides: “The Governor shall issue a writ of election to fill the [House or Senate] vacancy. If the vacancy occurs during the session of the General Assembly, the Speaker of the House of Delegates or the President pro tempore of the Senate, as the case may be, shall issue the writ unless the respective house by rule or resolution shall provide otherwise.”
(Update: A special election was announced this afternoon, for the ridiculously late date of March 23 — after the regular legislative session ends! That’s nearly three months after the seat became vacant. By contrast, Governor Northam filled a Democratic seat in Prince William County less than a month after a Democratic legislator resigned. Delegate Jennifer Foy resigned from the House of Delegates on December 8, 2020. Her successor was elected in a special election on January 6, 2021.)
“Shall” is mandatory language, requiring the governor to act. The special election could easily have been scheduled for January 12 or January 19. After the writ is issued, the writ then has to be transmitted to the registrars. The election then has to be advertised by the registrar for a minimum of 10 days, and the election must be held on a Tuesday.
But January 12 is now here, and no special election has been scheduled. The statute requires the governor to promptly issue a writ of election. He has the duty to do so, unless the vacancy occurs during the session, in which case the president of the senate would have to issue it. The governor is flouting the law.
In response to the governor’s foot-dragging, the Dickinson County Board of Supervisors adopted a resolution January 11 calling on the governor to fill the seat and “schedule a special election.”
This delay in calling the special election seems like a deliberate attempt by Democrats to keep this Republican seat vacant — and the senator’s constituents disenfranchised — during this session of the General Assembly (or at least, the most important part of it — it is still possible that the governor will call a special election later during this legislative session, after progressives manage to pass the legislation they prize most).
Filling Chafin’s seat would not enable Republicans to block most progressive bills from passing the legislature in some form because Democrats still would control the legislature, and they usually vote in unison. But some progressive bills might have to be amended to remove some ideologically extreme provisions, in order to pass the closely divided state senate (the way legislation allowing much earlier release for inmates who behave in prison was amended in 2020 to exclude some violent offenders, because one moderate-liberal Democrat on the Rehabilitation Committee wanted the bill amended).
Virginia’s legislature is expected to largely abolish mandatory minimums in this legislative session. On January 5, the Democrat-dominated Virginia Crime Commission voted 9-to-2 to abolish all mandatory minimums, without exception, for even the worst crimes, and to allow inmates serving such sentences to have their sentences revisited. Whether its proposed legislation will be amended probably depends on whether Chafin’s seat is filled. If it is not, all mandatory minimums may be abolished. If his seat is filled, the Commission’s proposed legislation may have to be amended slightly in order to pass the legislature, such as by excluding the worst offenders (such as those who murder police officers).
Proponents of mandatory minimums argue they reduce crime and eliminate disparities between similarly-situated offenders. By increasing punishment, they also deter some crimes from being committed. Crime in California fell significantly after California voters adopted Proposition 8, which mandated longer sentences for repeat offenders who kill, rape, and rob others. A National Bureau of Economic Research study found those longer sentences deterred many crimes from being committed. As it observed, three years after Proposition 8 was adopted, crimes punished with enhanced sentences had “fallen roughly 20-40 percent compared to” crimes not covered by enhanced sentences.
Hans Bader is an attorney living in Northern Virginia. This column was published originally at Liberty Unyielding.
EDITOR’S UPDATE: The special election is now called for March 23.