If Gov. McDonnell leaves office before the end of his term, what then?

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July 16, 2013

By Greg Janetka

McDonnell inauguration.jpg
Portal:State Executive Officials

With controversies swirling around Virginia Governor Bob McDonnell (R), two Democratic state senators have called for the governor to step down or be removed from office. Paul Nardo, who as chief administrator of the Virginia House of Delegates reports to the Republican Speaker of the House, has been dispatched to search "for clues on the legislature’s role in the unprecedented: the resignation or removal of a Virginia governor," while conservative bloggers in the state say that resignation is inevitable.[1][2]

If McDonnell resigns or is forced from office, what exactly would happen? What are the steps involved in a forcible removal?

Virginia has had 71 governors. None of them have resigned or been forced to resign.[3][4]

In the 1940s, the Virginia House of Delegates impeached two judges. This has been cited as the most similar event in the state to the removal of a governor.[1] The current procedure for removing a judge involves impeachment by the House of Delegates and prosecution by a two-thirds vote of the Senate.[5]

State Sen. J. Chapman Petersen (D), the first to call for McDonnell to resign, said, "If you are unable to explain (or deny) these reports or return the items, then I humbly suggest that you should step down as Governor and permit the Lieutenant Governor to serve out the balance of your term, pursuant to Article V, Section 16 of the Virginia Constitution."[6]

Turning to the portion of the state Constitution in question, Article V, Section 16 states:

"In the case of the removal of the Governor from office or in the case of his disqualification, death, or resignation, the Lieutenant Governor shall become Governor."

While death and resignation are straightforward, what about disqualification? One option outlined in Section 16 states:

"Whenever 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, transmit to the Clerk of the Senate and the Clerk of the House of Delegates their written declaration 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."

If that were to happen, the governor could still offer a "written declaration that no inability exists" and resume the position unless 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, reply with their own written declaration, reaffirming their beliefs that the governor is unable to discharge the duties of the office. That then sends the issue to the General Assembly to decide.

Also worth noting is that Virginia has a unique process for removing elected officials from office that is akin to a recall, but gives jurisdiction to a circuit court, which would hold a trial. Created in 1975 and modified in 1989, 1993, 2002, and 2011, § 24.2-233 of the Virginia code states:[7]

"Upon petition, a circuit court may remove from office any elected officer or officer who has been appointed to fill an elective office, residing within the jurisdiction of the court."

The petition would require signatures of registered voters equal to ten percent of the total number of votes cast in the last election for the office. The terms of which an official can be removed include neglect of duty, misuse of office, or incompetence in the performance of duties when that neglect of duty, misuse of office, or incompetence in the performance of duties has a material adverse effect upon the conduct of the office, or upon conviction of a drug-related misdemeanor or a misdemeanor involving a "hate crime."[7][8]

Another option is simply to allow McDonnell to finish out his current term, which ends in January 2014. He is barred from seeking re-election due to term limits. To most Democrats this appears to be the best option and is arguably why only a handful have called for McDonnell to leave. Once McDonnell's problems begin to affect the re-election hopes of other Republicans, the GOP will all but be forced to act.[1]

What is clear is that the allegations have severely hurt McDonnell in the public eye. According to a survey released by Public Policy Polling on July 15, the governor's approval rating has fallen from 44 percent approval in May down to 36 percent approval - a drop of 12 points in the last two months.[9] Additionally, 35 percent of voters said he should resign, with 45 percent saying he should remain in office.[10]

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