RICHMOND — A provision of the Virginia Constitution appears to give three state political leaders, acting collectively, the authority to remove a governor and elevate a lieutenant governor to the governorship, at least on an acting basis.
While the provision has never been tested, it was intended to deal with a governor’s physical or mental incapacity, not a loss of credibility, according to A.E. Dick Howard, a principal architect of the modern Virginia Constitution, which took effect in 1971.
“That’s my reading of it, particularly when the controversy is about something that happened before the governor became governor, something in the past like the yearbook that was back in the 1980s,” said Howard, a professor of international law and a constitutional expert at the University of Virginia.
“I think the obvious intention of Section 16 of Article 5 is to deal with incapacity — mental or physical,” Howard said Saturday in a phone interview. To argue that a governor “is unable to function because people are upset about something he did in the past seems to me to go beyond the natural intention of Section 16.”
Article V, Section 16 of the state constitution deals with succession to the office of governor.
One provision says that if the attorney general, the president pro tempore of the Senate and the speaker of the House of Delegates — or a majority of the total membership of the General Assembly — notifies the House and Senate clerks in writing that the governor is unable to discharge the powers and duties of his office, “the lieutenant governor shall immediately assume the powers and duties of the office as acting governor.”
The current holders of those three offices are Attorney General Mark Herring, a Democrat; Sen. Steve Newman, R-Lynchburg, the president pro tempore of the Senate; and House Speaker Kirk Cox, R-Colonial Heights. None has suggested triggering the section in an effort to remove Northam.
Under the constitutional provision, if the governor contests the finding in writing to the House and Senate clerks, that effectively cancels out the action of the three officers. The governor would then resume the office unless the three officials — or a majority of the total membership of the General Assembly — press the point and insist to the clerks, in writing, that the governor is unable to discharge his duties.
If that were to happen, the General Assembly would settle the issue — and the bar to remove a governor is high.
“The General Assembly becomes the forum for deciding the fate of the governor at that point,” Howard said.
If three-fourths of the elected membership of each chamber then determines that the governor is unable to discharge his duties, the governor would be removed from office and the lieutenant governor would become governor. If the vote does not reach three-fourths of each house, the governor resumes the office.
While Howard said he does not think the yearbook controversy “falls within the ambit of what this section is meant to be about,” he added that “a very broad definition” of the language about a governor’s inability to perform his duties “might be that he’s lost the credibility of his office in the state at large,” he said.
“I think that’s not consistent with what this section is about, but the language of the section itself doesn’t prevent those three officers from making a declaration that’s in effect, subjective — just their idea of why he’s not able to function.”
The other constitutional avenue for removal of a Virginia governor — which also never has been invoked — is impeachment. The House of Delegates can impeach a governor for “malfeasance in office, corruption, neglect of duty or other high crime or misdemeanor.” The Senate would try the case and conviction would require the votes of two-thirds of the senators who are present.
If Northam steps down and Lt. Gov. Justin Fairfax becomes governor, Fairfax would have the authority, under the gubernatorial appointment powers, to name his successor as lieutenant governor, Howard said. The appointed lieutenant governor would fill the vacancy until the next scheduled election for lieutenant governor in 2021.