Virginia’s Constitution has been ignored and circumvented in connection with the 2020 and 2021 elections, and the abuse of prosecutorial discretion by some Commonwealth Attorneys.
In October 2020, the State Board of Elections (SBE) issued a regulatory “interpretation” that nullified the statutory requirement that absentee ballots received after election day had to be postmarked no later than election day. In doing so, the SBE violated the plain language of a provision of the Virginia Code and usurped the constitutional authority of the General Assembly to enact election laws. See the article here.
Virginia Attorney General Mark Herring did nothing to challenge the SBE’s unilateral nullification of the plain language of Virginia election law, despite his oath of office that requires him to support and defend the Virginia Constitution and the Virginia Code.
On October 5, 2021, the Fairfax County Board of Supervisors (BOS) voted 9-1 to ask Governor Ralph Northam for permission to suspend the statutory requirement that absentee ballots had to be witnessed for the 2021 election. This request was made despite the fact that BOS has no jurisdiction or authority over election matters under the Virginia Code, and its request sought “permission” from the Governor that would be in violation of the anti-suspension provision in Virginia Constitution, Article I, Section 7. See the article here.
In October 2021, the Fairfax County Office of Elections unilaterally waived some legal requirements for absentee ballots. See article here. Like the SBE’s regulatory “interpretation” in October 2020, this action violated the plain language of provisions of election law in the Virginia Code, usurped the constitutional authority of the General Assembly to enact election laws, and violated the anti-suspension provision in Virginia Constitution, Article I, Section 7.
Fairfax County Commonwealth Attorney Steven T. Descano has claimed that his prosecutorial discretion justifies his refusal to prosecute certain criminal offenses, and his refusal to request cash bail under any circumstances. Descano’s “reforms” violate the Virginia Constitution by: (1) suspending the operation of some provisions of Virginia law; (2) being inconsistent with his duty to take care that the laws be faithfully executed; and (3) infringing on the constitutional authority of the General Assembly to enact laws. See the article here. Other Commonwealth Attorneys have adopted similar policies and practices.
The need to prevent a constitution from being an empty formality is not a novel issue. The Federalist Papers were a series of essays published in 1787-1788 to advocate for ratification of the then-proposed United States Constitution. In one essay, Virginian James Madison warned against the danger of relying on parchment barriers:
“[A] mere demarkation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.” (Federalist paper # 48, published February 1, 1788).
Madison’s comments reflected the understanding that written constitutions are not self-executing, and that measures have to be taken to ensure that the provisions of written constitutions are carried out, protected from infringement or violation, and not allowed to languish from inaction or inattention.
Human experience shows that (1) people who engage in wrongdoing tend to repeat their misconduct if they are not held accountable, and (2) other people seeing that there is no accountability for such misconduct will be encouraged to try to get away with it themselves. So, unless Virginians challenge the actions of government officials who ignore or circumvent the Virginia Constitution, they will (a) encourage future mischief by unaccountable Virginia officials who ignore their oaths of office and usurp authority that is not legally available to their government positions; and (b) end up with an undermined, fading Virginia Constitution.
Under Virginia Constitution, Article I, Section 2, the people of Virginia are sovereign and government officials are trustees (not rulers) who are accountable to the people for the actions they take. Virginians have two ways to seek to hold accountable any government officials who abuse their office and act in violation of the Virginia Constitution: (1) remove misbehaving officials through the political process; and (2) remove misbehaving officials through the statutory removal provisions.
In Lewis Carroll’s Alice’s Adventures in Wonderland, Alice meets the Cheshire Cat. At the end of their conversation, the Cheshire Cat slowly fades away until only its smile remains. If Virginians fail to take lawful action to hold accountable government officials who abuse their positions in violation of the Virginia Constitution, the undermined Constitution will fade like the Cheshire Cat — leaving behind a merely symbolic “parchment barrier” that is hollow and disembodied like the Cheshire Cat’s smile.
