On October 5, 2021, the nine Democrat Supervisors on the Fairfax County Board of Supervisors voted to ask Governor Ralph Northam for permission to suspend the election law requirement that signatures on absentee ballots be witnessed for the 2021 election. Republican Supervisor Pat Herrity voted against the proposal. See Virginia Star article here. At this time, the text of the letter sent to Governor Northam does not seem to be available on the Fairfax County government website.
Significantly, nothing in Virginia Code, Title 15.2 (Counties, Cities, and Towns) or Title 24.2 (Elections) gives the Board of Supervisors jurisdiction or authority over elections, or the right to involve itself with matters committed by law to the state and county election boards. Absent such statutory authority, the Fairfax County Democrat Supervisors are intruding on election matters outside of their jurisdiction and authority.
Furthermore, the vote shows the Democrat Supervisors are: (1) ignorant of, or indifferent to, the Virginia Constitution; (2) not honoring their oath of office; and (3) willing to commit an act that warrants their removal from office.
The Virginia Constitution, Article I, Section 7 states: “Laws should not be suspended. That all power of suspending laws, or the execution of laws, by any authority, without the consent of the representatives of the people, is injurious to their rights, and ought not to be exercised.”
Nothing in Virginia Constitution, Article V gives the Virginia Governor authority to suspend any provision of the Virginia Constitution or the Virginia Code. Nothing in the Virginia Code indicates that the General Assembly has authorized the Governor to grant requests by county or municipal officials to let them suspend implementation of any provision of the election laws.
Nothing in the Virginia Constitution or the Virginia Code provides any reasonable basis for the Fairfax County Democrat Supervisors to believe that (1) Governor Northam has the authority to suspend any provision of the Virginia Constitution or the operation of any provision of the election laws, or (2) Governor Northam has authority to give the Democrat Supervisors permission to ignore the Virginia Constitution and Virginia Code and suspend implementation of any provision of the election laws.
The waiver of the absentee ballot signature requirement for the 2020 election was not based on any judicial ruling that the Governor or any county or municipal government had the power to authorize such a waiver. Furthermore, that waiver was limited to the 2020 election and was not open-ended. Furthermore, the video of the October 5, 2021 Board of Supervisors meeting shows that Chairman Jeffrey McKay acknowledged that the General Assembly has not authorized suspension or waiver of the absentee ballot signature requirement for the 2021 election.
It appears that the Fairfax County Democrat Supervisors are ignoring the Virginia Constitution or are indifferent to it. By making their request to Governor Northam, the Democrat Supervisors demonstrate that they are not honoring their oath of office to uphold the Virginia Constitution and Virginia law (Virginia Constitution, Article II, Section 7). And, by making their request, the Democrat Supervisors demonstrate their willingness to act outside the scope of their jurisdiction and authority under Virginia law to seek to change the election process in the middle of the 2021 election. Furthermore, nothing in the Virginia Constitution authorizes a county or municipal government to suspend implementation of any provision of the Virginia Code — even if it is claims to be acting on the basis of a county or municipal declaration of a state of emergency.
Under Virginia Code, Section 24.2-233, an elected official can be removed from office for neglect of duty or misuse of office. In a case appealing the removal of a Commissioner of Revenue of the City of Hopewell, the Virginia Supreme Court specifically stated that, in an earlier removal case involving a mayor, it had approved a lower court jury instruction which included the following language:
“. . . malfeasance in office is the doing of an act for which there is no authority or warrant of law . . . [The mayor] has no right, power, or authority to annul any ordinance of the city, or suspend its operation as to any person or locality.” Warren v. Commonwealth, 118 S.E. 125, 129 (1923).
Based on that Virginia Supreme Court language, it could be argued that the Fairfax County Democrat Supervisors are misusing their office by seeking the Governor’s permission to commit an act not authorized by the Virginia Constitution or the Virginia Code. Also, their willingness to exceed the limits of their jurisdiction and authority to ask Governor Northam to let them suspend a provision of the election law in violation of the Virginia Constitution and the Virginia Code demonstrates a neglect of their duty to honor their oath of office.
The rule of law is a precious principle that developed over centuries of political struggle in England, was embraced by the American colonies before the War for Independence, and is embodied in the United States Constitution and the Virginia Constitution. Acting in matters outside one’s jurisdiction and authority is a misuse of office and a violation of the rule of law. Unauthorized suspension of the law is antithetical to the rule of law and representative democracy. Actions by government officials that seek to ignore, evade, or circumvent the rule of law are subversive of the freedom and liberty of all Virginians.
The Fairfax County Democrat Supervisors are: (1) ignoring the limits of their jurisdiction and authority under Virginia law; (2) acting in violation of their oaths of office; and (3) subverting the rule of law. Their request to Governor Northam for permission to circumvent the Virginia Constitution and the Virginia Code to change election procedures in the middle of the 2021 election renders them fit for removal from office. If the Democrat Supervisors succeed in their effort to subvert the rule of law in this election, then the people of Fairfax County will be vulnerable to future violations of the rule of law. If the Democrat Supervisors are allowed to ignore, evade, or circumvent any provision of Virginia law in violation of their oath of office, then the people of Fairfax County will be denied their fundamental right to live under, and be protected by, the rule of law.
The people of Fairfax County have a fundamental right to hold the Democrat Supervisors accountable (Virginia Constitution, Article I, Section 2), to petition the government for redress of grievances (Virginia Constitution, Article I, Section 12), to protect their liberty and freedom under the rule of law by using the legal process of removal (Virginia Code, Title 24.2, Chapter 2, Article 7), and to seek whatever judicial relief is available to stop the Democrat Supervisors from suspending, or interfering with, the implementation of existing Virginia election law.