A week ago, the future of Virginia’s governor’s mansion seemed fairly obvious: Gov. Ralph Northam (D) would resign in the wake of the emergence of a racist photo from his medical school yearbook, and Lt. Gov. Justin Fairfax (D) would take over.
But it’s been a long week. Now it seems more likely that Fairfax will resign, following multiple allegations of sexual assault against him. Northam seems to be prepared to dig in, perhaps frustrating no one more than Virginia Attorney General Mark Herring (D), who, as second in line to the governor’s seat, would have seemed to be well positioned if both Northam and Fairfax stumbled. Of course, his own history of appearing in blackface also put Herring on the rocks, leaving third-in-line Speaker of the House Kirk Cox (R) in a suddenly advantageous position.
With so much up in the air in the state, we decided to put together a flowchart showing how the dominoes might fall — if any do. We’re grateful to A.E. Dick Howard, Warner-Booker distinguished professor of international law at the University of Virginia and executive director of Virginia’s Commission on Constitutional Revision, for his patience with multiple, out-of-the-blue emailed questions as things got ever murkier.
Let’s start with the (for now) more likely branch: Fairfax resigns. If he does, Northam can appoint a new lieutenant governor, who will serve until a special election this November.
Remember, though: Northam might also still resign. If he does so before he appoints a new lieutenant governor, then Herring gets the call. If he resigns after appointing a new lieutenant governor, then, in theory, that person might become governor.
But not necessarily. Howard explained in an email, using a hypothetical appointed Lt. Gov. Smith:
“[O]ne could make an argument that allowing Smith to become Governor would defeat the intention of Article V, Section 16. That section lays out in great detail succession to the office of Governor,” he wrote. “To allow the process of resignation and the filling of vacancies to result in the installation of a Governor who lacked any mandate of the people would be inconsistent with Section 7’s purpose and structure. I can imagine the argument, therefore, that the careful and specific process laid out in Section 16 would control over the general provision in Section 7.”
Howard helped draft the current constitution, so he’s probably more familiar with its sections than you are. What he’s saying, in essence, is that the elevation of someone to the office who has no mandate from the state’s voters would violate the spirit of the articulated succession system. That succession system might be determined (by a court, presumably) to hold more weight than Northam’s handpicked lieutenant governor, and Herring would, again, be appointed governor.
Now, if Herring were to resign, Cox would be tapped (unless Herring, too, appointed a lieutenant governor, sparking the same constitutional debate as outlined by Howard above). If for some reason Cox were to resign — since you never know these days — the constitution stipulates that the House of Delegates would simply elect a new governor.
If we go back to the top, we see that the branch in which Northam resigns first looks much the same as the one if Fairfax resigns first. It all comes down to where the series of resignations stops — and if the appointed lieutenant governor can pass constitutional muster.
There’s another option, too: That our hyperactive news cycle will move on from the travails of Virginia’s politicians and all four men remain where they are for the duration of their terms. Weirdly, that’s probably the least likely scenario of all.