It was just about a week ago that the news first broke about the discovery of the yearbook page of Virginia Governor Ralph Northam from his final year at the Eastern Virginia Medica School from 1984 which includes, along with pictures of Northam and others, a picture that depicts one person in blackface and another person wearing Ku Klux Klan garb. In his initial response to the news, Governor Northam apologized for the photograph and appeared to admit that he was one of the two people depicted in that photograph, although he did not say which one. This led a plethora of statewide and national Democrats to call for his resignation, something which at least initially seemed as though it would happen. Within twenty-four hours after the release of the report, though, Northam held a press conference in which he denied being either of the people in the photo although he did admit to having once darkened his skin in connection with a Michael Jackson impersonation he performed in San Antonio later in 1984. This flip-flop and the general weirdness of that Saturday press conference did not satisfy critics and led more of the Commonwealth’s top Democrats to call on him to step aside, a move that he has so far not taken.
In the week since all that transpired, Virginia politics has been thrown into further chaos thanks to, among other things, charges of sexual assault against Lt. Governor Justin Fairfax, who would succeed Northam were he to resign and the admission by Attorney General Mark Herring that he too had donned blackface when he was 19 as part of an impersonation of 80s rapper Kurtis Blow. Later in the week, the dumpster fire in Richmond took on a bipartisan tone when Senate Majority Leader Tommy Norment admitted that he had been the editor of the yearbook at the Virginia Military Institute when several photographs of students in blackface were published in 1968, just months before the institution admitted its first African-American student. All of this has created a sense of chaos in Richmond even as legislators are rushing to complete the legislative session, including the passage of a budget for the upcoming Fiscal Year.
When this story first broke last Friday, it seemed that Northam’s days in office were numbered, but the developments with regard to Fairfax and Herring specifically have thrown that into doubt and, whether Virginia Democrats like it or not, it’s entirely possible that Governor Northam could end up hanging on to the end of his term in January 2022:
RICHMOND, Va. — Gov. Ralph Northam of Virginia apologized. He held the ritual news conference of a humiliated politician, punctuated with a discussion of whether he could still do the moonwalk. He went into seclusion.
And so, here he is: diminished, abandoned, condemned — and still the governor of Virginia.
Mr. Northam, besieged after the revelation of a racist photograph on his medical school yearbook page, may remain that way for the rest of his term, which has almost three more years to run.
Improbable as it may seem, Mr. Northam is increasingly seen in Richmond, a state capital consumed by crisis and speculation, as a scandalized Democrat likely to hang on to his job — with his fortunes bolstered by the troubles of the men in line to succeed him, Lt. Gov. Justin E. Fairfax and Attorney General Mark R. Herring.
“The timing of the other scandals certainly helps him, because the spotlight is no longer solely on him, and he is not the only story in town,” said Mark L. Keam, a Democrat in the Virginia House of Delegates. Mr. Keam, who previously called for Mr. Northam’s resignation, emphasized Thursday that the emergence of possible misconduct by the others did nothing to change the governor’s own culpability.
Hours later, the Statehouse drama widened further with the revelation that Thomas K. Norment Jr., the Republican majority leader in the State Senate, helped edit a college yearbook that featured slurs and racist photographs, including blackface
But even before the three follow-up scandals — the detailed allegation of sexual assault against Mr. Fairfax, Mr. Herring’s acknowledgment that he had worn blackface, and the disclosure about Mr. Norment’s yearbook — collectively rattled the Virginia Capitol, Mr. Northam had already decided he would ignore his party’s demands and stay in office.
He is far from the first governor to try to defy legions of naysayers within his government, in the Legislature, on editorial pages and on social media. Indeed, one embattled governor after another has attempted, at least initially, to remain in power; Mr. Northam is the third in the South to try it in the last decade.
“These are generally, by definition, competitive, high-achieving people who have worked incredibly hard and sacrificed a lot to get to this position in the first place, and so you could see why they would be reluctant to simply walk away,” said Ross H. Garber, a lawyer who has represented no fewer than four governors who were threatened with impeachment.
“Most successful politicians at high levels have had to withstand huge challenges, sometimes including scandals, to get to that position,” Mr. Garber said. “The instinct is to do what they have done before, and withstand it.”
Governors live and work in different environments than most other elected officials — surrounded by state troopers, housed in gated and guarded mansions, and insulated by large staffs — and that can fuel their willingness to defy demands for their resignations.
“They don’t have to go to the grocery store and go shopping, and be faced with the average person coming up to them and giving them negative feedback,” said André Bauer, who was South Carolina’s lieutenant governor during a period of political upheaval in 2009. “They’re able to withdraw a little bit during the more difficult times. They have the ability to miss some public appearances and let the public outcry die down a little bit.”
If Northam refuses to leave, he would not be the first scandal-plagued Governor with a seemingly doomed political future to hold on to power significantly longer than seemed likely when their respective scandals first broke. As the article notes, Alabama Governor Robert Bentley held on to power for more than a year after being accused of sexual misconduct. Missouri Governor Eric Greitens ultimately stepped aside but stayed in office for nearly five months after being hit with a scandal that included a felony indictment. Another Virginia Governor, Robert McDonnell completed his term notwithstanding an ethical cloud that was created by his acceptance of gifts from a family friend who was also seeking business opportunities with the state government. Additionally, while McDonnell was convicted on a number of charges related to that scandal, those convictions were ultimately reversed by the Supreme Court of the United States. Illinois Governor Rod Blagojevich, meanwhile, managed to stay in office notwithstanding serious charges that he accepted bribes in connection with filling the Senate seat formerly held by former President Obama and thus had to be impeached and removed from office by the Illinois legislature after which he was ultimately convicted by a Federal jury and sentenced to prison. Finally, and perhaps most famously, South Carolina Governor Mark Sanford held on to power amid a personal scandal involving an extramarital affair and ultimately managed to make a political comeback and win election to his old seat in the U.S. House of Representatives.
All of these cases, of course, involve either criminal activity or scandals that took place while they were Governor. In Northam’s case, we are talking about an activity that while deeply offensive and inexcusable did not happen while he was Governor and occurred some thirty-five years in the past when Northam, now 59 years old, was 25 years old. Given that, and notwithstanding the fact that he has essentially lost the confidence of the entire Democratic Caucus in the Virginia legislature as well as the members of the state’s Congressional Delegation, it’s unclear exactly what can be done if Northam refuses to step aside. As with the Federal Constitution, the Virginia Constitution does include a provision providing for the impeachment of state officials such as the Governor, Lt. Governor, and Attorney General, but it’s text clearly seems to limit its coverage to events that happened while the individual in question was in office or, at the very least rise to the level of a criminal act:
The Governor, Lieutenant Governor, Attorney General, judges, members of the State Corporation Commission, and all officers appointed by the Governor or elected by the General Assembly, offending against the Commonwealth by malfeasance in office, corruption, neglect of duty, or other high crime or misdemeanor may be impeached by the House of Delegates and prosecuted before the Senate, which shall have the sole power to try impeachments.
Based on this language, it doesn’t appear to me that appearing in blackface or Klan garb thirty-five years ago rises to the level of an impeachable offense under Virginia law. In theory, of course, what constitutes an “impeachable offense” really comes down to what a majority of the House of Delegates says it is. After such impeachment, it would be up to the State Senate to hear the trial of the case and determine if removal from office was appropriate. That being said, the fact that impeachment can mean whatever the appropriate legislative body wants it to mean doesn’t mean it should be applied liberally. In the case of the Federal Constitution, for example, the Founders clearly intended it to be an extraordinary measure used in extraordinary times, and that seems to be the case with the identical provision in the Virginia Constitution, which to my knowledge has never been utilized against a sitting Governor, Lt. Governor, or Attorney General. On the Federal side, for example, I would say that the use of the impeachment power was only appropriate once in American history, and that was with President Nixon who resigned before the House could vote to impeach. The Johnson Impeachment in 1868 was clearly nothing more than a blatantly political move based on a law that was itself unconstitutional. The Clinton Impeachment was, in my opinion, overreach in a situation where censure would have been more appropriate. While I very much support the idea of legislative branches being more assertive toward the Chief Executive, be that a President or a Governor, turning the impeachment power into a political tool is not the way to do it.
In any case, as I’ve alluded to before, the question of impeachment is out of the hands of Virginia Democrats. By a very narrow margin, Republicans control the House of Delegates and it would be up to them to open and proceed with impeachment proceedings. So far, there’s no sign that the GOP is at all inclined to take any action at all against Northam and, from a political point of view, there are plenty of reasons for them to leave him in power as long as possible. As I’ve noted before, Virginia’s midterm elections take place in November of this year. At that time the entire House of Delegates and the State Senate will both be up for grabs. From the Republican point of view, there’s at least some advantage to heading into those elections with the top three Democrats in the state under ethical and, in the case of Lt. Governor Fairfax, potentially criminal, clouds. At the margins, that may just be enough to preserve their majorities in the House of Delegates and the Senate and to keep Democrats on the defensive heading into the inevitable shift to the races that will take place in 2021 when all three offices, Governor, Lt. Governor, and Attorney General, will all be up for election. No matter how much they may want Northam out of he way before then, there’s little that Virginia Democrats can do about that.
Ralph Northam behaved like an idiot when he was 25 years old, and I do support those who say he should resign for the good of the Commonwealth due to the fact that he has largely lost his ability to effectively govern and placed the momentum by default in the hands of the legislature going forward, there seems to be very little that can be done if he refuses to leave office. That may yet happen but, so far, there’s no sign that Ralph Northam is going anywhere.
