Northam Leaves GOP Senate Seat Vacant to Ensure Progressive Dominance

Sen. Ben Chafin

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.  

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64 responses to “Northam Leaves GOP Senate Seat Vacant to Ensure Progressive Dominance

  1. “Virginia’s Democratic governor has deliberately delayed filling the seat so that progressive bills will be able to pass the state legislature more easily…”

    This is almost certainly not true, but if it is my esteem for the governor would go up.

  2. Or could it be that we expect to lose a Senate seat in redistricting and it’s easier to accomplish if there isn’t a person who is being pushed out? There could be other reasons, as well.

  3. Bader is imputing a motive to Northam’s non-action that we do not know to be true. It is a reasonable conjecture, but neither Northam nor his minions have not said anything to confirm that conjecture. It would be safer to say that the effect of Northam’s dilly dallying will be to make it easier to pass progressive bills through the legislature.

  4. When you refuse to even schedule an election, that’s the ultimate in “voter suppression,” isn’t it?

    I wonder how the MAGA-hat wearing voters in Dickenson County feel about this. Might they feel… just a touch… alienated? Might this confirm all their suspicions that the Democratic Party establishment really is out to screw them? Who needs Q’Anon conspiracy theories when you have real friggin’ life? It’ll be interesting to see how they behave when they show up to the next gun-rights rally in Richmond.

  5. One of the non-medical downsides of COVID-19 has been the emboldening of Virginia’s political class to ignore the law. From Stoney’s statue removal to Filler-Corn’s lie that she ordered statues removed with a contract to suspending freedom of religion to Northam instituting a mindless curfew in Arlington and Alexandria in conjunction with local leaders.

    It will be interesting to see what happens if the upcoming General Assembly session passes legislation concerning gun control. Given the mood of the country and the state I’d suspect that a notable number of counties, towns and cities will refuse to enforce such a law. Their logic will be simple – if Richmond can ignore the law then so can rural counties and small towns.

    • Baconator with extra cheese

      And we have also seen that you can burn stuff, confront cops, block traffic, scream at people, destroy public property, and shut down businesses with selective enforcement of laws and prosecution.
      It’s not a stretch to think sympathetic local authorities will turn their backs just like Stoney did in RVA.

  6. Trump pulls such crap all the time. No mention at BR.

  7. sorta thinking back to when the GOP had the Gov and the GA… veritable saints they were… 😉

  8. Here’s an equally speculative post. McConnell will throw Trump under the bus just as soon as he gets assurances from the Democrats they won’t come after Graham, Cruz, and Hawley.

    • The bus runs over Trump Jan 20 no matter what….Look, he has no place in this discussion. Vacancies in Congress are filled by writs of election that he has nothing to do with. I can’t wait until he is totally gone and you guys have nothing else to talk about. Graham, Cruz and Hawley answer to their own voters, and may have to, but I doubt it.

      • It was illustrative only, Steve. Could have avoided the issue altogether last year. That’s not on me.

        Nevertheless, he’s a McConnell chip unti then.

      • You must be thinking Trump won’t do anything more – like a blanket pardon for the Capitol mob and any others before Jan 20 and the Senate gets the impeachment?

        No way, he’d do that, right?

        predicted new GOP meme: ” I was never ever a fan of Orangeman Bad”, The Dems made me do it”

      • ” I can’t wait until he is totally gone and you guys have nothing else to talk about.”

        That’s wishful thinking. How many years into the Obama administration was Bush still being blamed for things?

    • Baconator with extra cheese

      Now that is piece of very good analysis. As soon as I read it I started shaking my head.
      Plus Mitch does have to come home to the wife….

  9. Delegate Jennifer Foy (D – Prince William) resigned from the House of Delegates on December 8, 2020. Her successor was elected on January 6, 2021. According to Northam’s official website, a special election was ordered on December 8, 2020. Zero days between the resignation and writ of election.

    Delegate Joe Lindsey (D- Norfolk) was appointed a judge around November 9, 2020. His successor was elected on January 6, 2021. Northam’s website indicates he ordered the special election on December 1. 21 days between the resignation and the writ of election.

    Even if the Governor followed the Lindsey precedent, he should schedule the election by January 22. But then, why not follow the Foy precedent? How about the average — 11 days? That’s today. Too bad the media believes its job is to prop up Mr. Blackface and all his fellow progressives.

    What the F are they going to do after we no longer have Trump in the White House? Oh yah, impeach him. We know there will be no pressure on the guy who flunked 3rd grade and now doesn’t know anything that’s not on his teleprompter or the gal who believes in religious bigotry and flunked the bar exam. (Full disclosure – I had to take two bar exams in two separate states. Past them both on the first time.)

    • In those cases Northam and the D’s obviously coordinated well in advance. And frankly, in this case, I bet he was fully aware a member of the Senate was dying down the street at MCV…right across from the Capitol. A “decent interval” following a death is understandable. But now he is delaying because he can.

      • You worked an election or two. Hold long does it take to print ballots? There’s a 75 day exclusion window from a sceduled election. Is the 75 days significant?

        “Notwithstanding any provision of law to the contrary, no election to fill a vacancy shall be ordered or held if the general or special election at which it is to be called is scheduled within 75 days of the end of the term of the office to be filled.”

        • You were just shown recent examples of how quickly it can be done. I talked with someone on the Senate R staff last week and he was saying the seat could have been filled by early Feb if the election had been called quickly. That other rule is there to make sure that any special is on the same day as the general if the general election is close.

        • Doesn’t a legislator’s term end at the swearing in of the new GA next January ? Even Joe Biden could do that bit of math. He might need a little help from Doctor Biden.

          Northam, like Trump, seems to prove Calvin’s doctrine of double predestination to be true.

          • Dick Hall-Sizemore

            State Senators are elected to four-year terms. The last election for Senate was in 2019, so there are two more years to go on Chafin’s seat.

    • Hans Bader is correct that “shall” is mandatory, not discretionary. The Governor has the constitutional duty to “take care that the laws be faithfully executed.” Virginia Constitution, Article V, Section 7. Failing to perform a mandatory duty is “neglect of duty,” which is an impeachable offense. Virginia Constitution, Article IV, Section 17.

      The examples provided by TooManyTaxes show Governor Northam is capable of moving promptly to fill vacancies when he wants to. Apparently Governor Northam thinks he has to fulfill his constitutional duty only when it benefits his party.

      Hell will freeze over before the House of Delegates impeaches Governor Northam. But, the failure to faithfully execute a clear, mandatory statutory requirement — regardless of motive — demonstrates a callous indifference to the rule of law. It bodes ill for all Virginians when elected officials ignore their constitutional duties and their oaths of office. There is no guarantee such indifference to duty will be limited to practicing partisan hard-ball in the General Assembly; it can easily lead to threats to the average citizen by elected officials who become inured to ignoring their oaths of office.

      • As noted above, he has now done it. Looooong wait to the election, but it is called.

        • 75 days from 1 week after his death.
          Maybe that 75 days is significant… to somebody.

          Rule 699) never put a number in a law; it will used incorrectly thereafter.

          • Dick Hall-Sizemore

            The 75 days refers to the end of the term for the office to be filled. That is to prevent having an election for a term that is about to run out.

  10. It’s only been ten days.

  11. I agree with Jim that Northam is engaging in another form of voter suppression. Is anyone going to sue him?

  12. Going to another aspect of Mr. Bader’s post, his opposition to abolishing mandatory minimum sentences is misguided. The General Assembly entrusts judges to render sentences that are appropriate in each circumstance. That is why there are sentence ranges for felonies, not set sentences. Also, there are sentencing guidelines available to judges in deciding an appropriate sentence. Mandatory maximums restrict that discretion for judges and require them to levy a set sentence, regardless of the circumstances of the offense. Anyone who has paid close attention to sentencing, and I have seen the data over the years, knows that judges have ways to get around those mandatory minimums when they feel it is justified. For example, there was a recent story in the RTD about a shooting victim. The judge sentenced the shooter to 28 years, with 8 years suspended, for a net active sentence of 20 years. It just so happens that there were three charges involved: the assault with a deadly weapon charge and two firearms charges. The firearms charges carried mandatory minimums of 5 and 3 years respectively. The judge obviously thought the shooting charge was “worth” 20 years, but he had to account for the mandatory minimums; thus a sentence of 20 years for the assault, 5 and 3 years for the mandatory minimums, and eight years suspended, for a net total of 20.

    I have seen fiscal impact statements for bills increasing sentences that show a statewide average sentence for an offense that is less that the stated mandatory minimum sentence for that offense.

    The General Assembly elects the judges. It should therefore trust in the judgment of men and women it puts on the bench and not tie their hands.

    • The downside to eliminating mandatory minimums is that people convicted of similar offenses will be sentenced to sentences that vary considerably by the judge. There will be hard-liners who give longer sentences, as well as softies that give light sentences. I’ve practiced law for 44 years. I don’t trust judges to be fair without significant regulations of their authority.

      • There are the voluntary sentencing guidelines for judges to use. 80 per cent of sentences are made within the parameters of the guidelines. Of the deviations, they are divided about evenly between mitigation (below the guidelines) and aggravation (above the guidelines).

  13. On second thought, I do have a comment on calling a special election. The major factor is allowing enough time for both parties to field candidates and for those candidates to conduct campaigns. In the case of the special elections called to fill the seats vacated by and Lindsey, they were called in early December and scheduled for January 6, allowing a month for the candidates to be selected and to campaign. Even if Northam had announced a special election the day after Chafin died, allowing a minimum of a month would have resulted in an election in early February, when the Session will be winding down (remember, the Republicans want to limit it to 30 days). Of course, if one already has a candidate in mind, scheduling an election to be held within 10 days would certainly discourage any opposition, which is what Mr. Bader seems to be advocating.

    • Pure rationalization. Remember, there will be at least one special session in the weeks following this one, and maybe two. None of us are the aggrieved parties here – has any reporter asked the voters of that district what they think?

      • got a feeling if the shoe were on the other foot, the heel would be dragging about the same… 😉

        • I’ve got a bit of history here and do not recall this happening with a governor of either party. The practice has been to fill the seats promptly. So no, Larry.

          • No shennanigans ever happened before with the Gov or GA?

            ever? 😉 oh come on… maybe not this one… but
            politics – both sides… ??? 😉

    • The Jennifer Foy example is 30 days from resignation to election. If Northam did it there, why not in SW VA?

  14. Baconator with extra cheese

    It’s simply an Equity issue.
    Dr. Governor would tell you there is already too many old cis male NonPOCs around in politics… well voting, he’ll happily take their money. Can’t have another one potential disrupting the Army of Woke… aka the Blue Wave.

  15. James Wyatt Whitehead V

    80,000 southwest Virginians are voiceless in the Virginia Senate. At least Northam remembered to lower the flag to half mast. Senator Chafin seems to be a well liked and respected figure. His memory deserves better than this.

  16. News alert: Headline just published on The Bull Elephant: “Special Election scheduled to fill Senator Chafin’s seat”

  17. This is cool! 10 years of Sun observation in 1:01:00. Relaxing. Enjoy.

    Okay, back to the fight.

  18. HARRISBURG, Pa. — Since last week’s deadly insurrection at the U.S. Capitol, about 225 Republicans logged in to the election office in Lancaster County, Pennsylvania, to change their party registration. Ethan Demme was one of them.

    “Ever since they started denying the election result, I kind of knew it was heading this way,” said Demme, the county’s former Republican Party chairman who has opposed President Donald Trump and is now an independent. “If they kept going, I knew there’s no way I can keep going. But if you’ve been a Republican all your life, it’s hard to jump out of a big boat and into a little boat.”

    So, how’s it going? Maybe one of the highly connected Baconites can determine if Virginia Republicans are stepping into the Independent lifeboat, too.

    • Genealogy research has shown that a number of my ancestors were active in the Democratic Party in the 19th and 20th Centuries. I was campaign treasurer for a Democratic state senator in Minnesota for two election cycles and was an elected Democratic delegate to several conventions. I haven’t voted for a Democrat since 1985. I have voted for third-party candidates and have written in a few names, but no Democrats.

      Even as much as I dislike Trump, I refused to vote for a ticket that included an anti-Catholic bigot celebrated by Democrats and the media. This country was founded on anti-Catholic bigotry and it remains acceptable today. Imagine what would have happened had a U.S Senator or Senators called for the disqualification of a judicial nominee for belonging to a Jewish, Muslim, Buddhist or Hindu organization.

      Now watch several posters try to minimize or discount Hirono’s and Harris’ bigotry.

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