Tag Archives: Jim McCarthy

For Want of a Plaintiff

by Jim McCarthy

On June 6, 2022, one hundred or more Virginians breathed a sigh of relief that they would not be required to campaign for the House of Delegates in November 2022. A panel of federal judges dismissed a lawsuit challenging the 2021 delegate elections because the voting districts were malapportioned, i.e., the results of the 2010 census were still in play defining the populations of the 100 seats.

Since the 14th century, we have been instructed on the crucial nature of the kingdom that was lost due to the want of a nail. A more contemporary moral is related to the significance of “one person, one vote.” The panel found that the plaintiff failed to demonstrate standing to sue because he had not suffered an injury in fact within the district where he voted as required by the Constitution for a case or controversy.

Reviewing the commonwealth’s population data from the 2010 and 2020 censuses, the panel’s analysis concluded that the plaintiff’s vote in the 2021 election was cast in a district that, in fact, had fewer residents than the “ideal district.” Census figures from 2010 indicated the “ideal district” was 80,000. When the new maps were drawn by the Virginia Supreme Court subsequent to the election, the ideal district was pegged at 86,314. The plaintiff’s district prior to the redistricting was numbered at 79,611 and at 85,344 post redistricting. The chart below outlines the analysis:

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Ideas Suffer the Casualty of Casualness

Fairfax County Commonwealth’s Attorney Steve Descano

by Jim McCarthy

Skilled polemicists and rhetoricians (perhaps even unskilled) can present material in a seemingly unbiased way even while intentionally distorting it. A recent Bacon’s Rebellion article bemoaned the assertion of Fairfax County Commonwealth Attorney Steve Descano in a New York Times op-ed piece that he would “never prosecute a woman for having an abortion.” The blog item further placed in quotation marks, “no matter what the law in Virginia says.” Both quoted selections are, in fact, words from the op-ed.

We owe it to the iconic Paul Harvey to be on guard to hear the rest of the story.

The title of the original ep-ed column is, in itself, political pander, pure campaign bombast: “My Governor Can Pass Bad Abortion Laws, But I Won’t Enforce Them.” Any who accept that Virginia’s governor can pass an abortion law – good or bad – failed grade school civics. Don’t judge the content of an article by a headline that was likely written by the newspaper editor. As for the argument made by Descano, follow the Bacon’s Rebellion post’s hyperlink to the op-ed. There you will see the complete context of the statement:

…in Virginia today women who are suspected of terminating a pregnancy without the assistance of a certified medical professional can face felony charges if they miscarry.

So when the court’s draft decision overturning Roe v. Wade was leaked earlier this month, I committed to never prosecute a woman for making her own health care decisions. That means that no matter what the law in Virginia says, I will not prosecute a woman for having an abortion, or for being suspected of inducing one.

In context, the full and complete CA statement presents a different import of the matter than that communicated to Bacon’s Rebellion readers. Continue reading

Faithless Electors, Faithless Congresspersons

by Jim McCarthy

“With what shall I fix it, dear Liza, dear Liza, with what shall I fix it, dear Liza, with what?” May 30th is National Hole in the Bucket Day offering the states and Congress the opportunity to fix the hole in the bucket of Presidential electoral processes and procedures.

At present, members of Congress are unrestrained from voting to accept or reject the certified state electoral votes and slates of electors for the Electoral College. This hole in the bucket has largely been deflected by emphasis upon election integrity, a meme for voter fraud by the voters themselves (or, occasionally groups).

The names of presidential electors may or may not appear on the ballot in most states; voters by and large believe they are casting a vote directly for the president and vice president. The U.S. Supreme Court (Chiafalo v Washington, 2020) unanimously ruled that states have the constitutional authority to force electors to vote in accordance with their state’s popular vote. The opinion, while recognizing state power in this regard, does not require states to prevent faithless electors. At the time of the decision, 33 states, including Virginia, had adopted legislation binding electors. Continue reading

Who Will Replace Us?

by Jim McCarthy

Who is the “who” doing the replacing? Who is the “us” to be replaced? There is no discernable record that indigenous Americans asked themselves this question. In the early 1600s, the Powhattan people of Virginia observed as the English immigrants built a fort and spread their settlement across formerly Powhattan hunting grounds. In 1622, the natives attacked as a measure, according to some historians, to teach the English a lesson.

From the circumstances, indigenous peoples were clear that the newcomers were not of their tribe nor sharing of their sensibilities; they were others with pale skins determined to clear and dominate forested lands for agriculture unburdened by who went before them. The existential evidence was reasonably graphic to conclude that the Powhattan were being replaced, their properties being converted without concern for their interests.

Although the later governing document authored by the immigrant colonialists appeared to accord native Americans the high diplomatic privilege of reserving to the Congress explicit authority to regulate commerce and negotiate treaties with them, the document also excluded untaxed natives from the census. That Constitution ironically contained a provision limiting the taking of property without due process or just compensation. In 1800, Congress adopted an act for the preservation of peace with the natives limiting First Amendment speech and press freedoms as a means to proscribe criticism of national policies and discourage foreign nations from stirring them to protest. Continue reading

Silence of the Trumpets

by Jim McCarthy

Criminal justice at the local level in Virginia is the province of the 120 Commonwealth’s attorney offices funded primarily by the state, with some also receiving local supplement. Indigent defendants may avail themselves of the Sixth Amendment right to counsel through 28 public defender offices. Many other indigent defendants will be represented by court appointed counsel from lists and attorneys overseen by the Virginia Indigent Defense Commission (VIDC) which is the statutory organization for public defenders.

The genesis of the existence of public defenders arose in 1963, ten years before Roe v Wade, with the SCOTUS opinion in Gideon v Wainwright. The defendant, Clarence Earl Gideon, was sentenced to five years in prison after trial at which he requested the appointment of counsel to defend him. At the time, states were mandated to consider appointed counsel only in capital offense proceedings, not for lesser offences which might involve imprisonment. The unanimous court in Gideon concluded that the Sixth Amendment did not distinguish between capital and non-capital cases, finding that a defendant faces the danger of criminal conviction “because he does not know how to establish his innocence.”

This hallmark decision and its progeny later gave rise to the familiar Miranda warning (Miranda v Arizona, 1966), a required notification by police in a custodial setting: Continue reading


by Jim McCarthy

Surely, at some point, an accomplished polymath will create Integripedia to provide info-hungry internet users with a comprehensive source on political integrity. Specifically, the compendium should cover the promises and pledges of political leaders as well their foibles and accomplishments and perhaps most memorable statements. For the present, however, we must rely upon Safari, Google, Bing and others to identify such topical information. Worse, we may be relying upon cable news pundits who are no longer characterizing their spiels as journalism.

At the end of April, Virginia’s youngish governor conducted a press conference to discuss his first 100 days in office and parse his administration’s accomplishments. Only a few outlets, rather unenthusiastically, reported upon the signature event. For the most part, the Governor offered that great progress has been made.

A reading of the media coverage confirms that the Governor made no mention of efforts to enhance the Commonwealth’s election integrity, as he promised during his campaign. No mention was made of his legislative amendment to restore integrity to the Loudoun County School Board which, during the campaign, he declared to be guilty of “gross negligence” and “violating the Virginia Constitution.”

Lay folk would likely agree that electoral procedures and processes should be annually administered to ensure the validity and credibility of each and every vote for each and every election. To this end, the proportions or numbers of electoral malfeasance discovered or prosecuted are vital mile posts in identifying soft spots and creating remedial measures. Continue reading

School Daze

by Jim McCarthy

Governor Glenn Youngkin had an opportunity to withdraw his big-footed amendment to a bill that would have moved the election date of the Loudoun County School Board from 2022 to 2023 and vacate the nine board seats for a new election. The original bill sought only to stagger the terms of five of the seats. Now, rejected by vote of Democrats in the senate, the Governor has the choice of vetoing the original bill or signing it.

Whichever choice is made, it is not likely to diminish the feral fever that has enveloped school board meetings nor will it appease the bloodlust outrage stoked during the campaign.

Passage of the proposed amendment rested, in part, upon the Dillon Rule, a judicial doctrine from the 1800s which provides that a local jurisdiction may exercise only what authority is conferred by the parent state. This principle, in turn, is mirrored by another dominant value that has guided educational policy for centuries called in loco parentis (ILP) or in place of the parent. Historically, as population grew and shifted from agrarian settings to urban and suburban ones with enhanced employment opportunities, the education of youth was entrusted to a public school system with professional personnel. Continue reading

Election Mulligan

by Jim McCarthy

Virginia’s new governor has proposed a legislative amendment preempting the normal election cycle and terms of office for a county school board in what can only be described as a “do over.” The amendment moves a school board election date from 2023 to 2022 and authorizes a new election for the nine-member body.

Politically, the move, an increasingly familiar trope among some conservative legislatures, echoes the “big steal” theme and tactics to magnify electoral results by officials. While not drawing inordinate attention, it is, at its core, a pernicious attempt to scuttle the democratic process that seated the board at its last election.

The ostensible rationale is related to the handling of sex crimes by the Loudoun County School Board occurring in late 2021 at the height of the campaign season. The Republican gubernatorial candidate, and ultimate winner, capitalized on the contentious issue declaring his conclusions while calling for an investigation stating: Continue reading

Would TJ Be a Republican or Democrat Today?

Red or blue?

by Jim McCarthy

“Don’t know much about history,” admitted Art Garfunkel in the opening line of the 1978 Wonderful World hit song. History was but one of several subjects Mr. Garfunkel recognized as wanting in his store of knowledge. A few lines later, however, he was confident to assert that “one and one is two.” This elemental statement in the context of the first may characterize the general view of John Q. Public.

Wikipedia was created twenty-three years after Garfunkel’s lyrics, providing a ready antidote for the curious to “not knowing much” about a topic. The crowd-sourced online publication offers a baseline of information about scores of topics that can be further researched. It is with Wikipedia that we commence a threshold inquiry into the question of whether Thomas Jefferson today would be a Republican or Democrat.

The historical jury agrees that the Shadwell Virginia Plantation native, the nation’s third President, belonged to the Democratic-Republican party during his terms of national service. That political organization opposed the Federalists who were, at the time, characterized as advocates of central government control and aristocratic attitudes. Thus, in contemporary political party identity, Mr. Jefferson may be deemed moderately bipolar. Continue reading

Forming a More Perfect Legislature

The Nebraska statehouse, home to the only state unicameral legislature in the United States.

by Jim McCarthy

Recently, Bacon’s Rebellion (BR) hosted an article and discussion concerning part- versus full-time legislators as members of the General Assembly. The topic arose from the failure of the General Assembly to conclude its session business without agreement on a state budget. The online conversation favored opposition to full-time legislator positions that might develop into a professional (permanent) elected class of citizens serving over extended periods of time.

While preservation and conservation are hallmarks of political conservatism, there are times when those criteria or values may be compromised by a nostalgia that displaces reason and critical evaluation. BR by its own terms (see its About page) proclaims:

The rules of governance, by which citizens hold these entities accountable, must be constantly updated. And leaders of these institutions must be subject to continual scrutiny.

The entities, naturally, include government. It may also be acknowledged that the processes of democracy and republicanism are not mutually exclusive or objects of binary choices. Classically, republicanism means representative government. There’s a simpler, more elegant solution to creating a more efficient, effective, and democratic legislature: a unicameral body. Continue reading