Minority leader Ward Arstrong has requested an advisory opinion from Attorney General Bob McDonnell regarding the seating of Charniele Herring, who was elected in the special election on Tuesday. The Republican majority in the House of Delegates has so far refused to seat Herring, citing, as this Washington Post story says, that they want to wait on the recount results.
Armstrong asks for an opinion “as promptly as possible.” The entire request is below the fold.
January 16, 2009
The Honorable Robert F. McDonnell
Office of the Attorney General
900 East Main Street
Richmond, VA 23219
Dear General McDonnell:
Pursuant to Virginia Code § 2.2-505, I request that you issue an advisory opinion answering the following question:
Under Virginia law, is the Clerk of the House of Delegates (the “House”) required to seat a Delegate-elect who received the most votes in a special election if the Virginia State Board of Elections (the “Board”) has issued to the Delegate-elect a certificate of election and certified the name of the Delegate-elect to the Clerk of the House?
For purposes of your opinion, please assume that the local electoral board, pursuant to Virginia Code § 24.2-671, ascertained the results of the election and determined that the Delegate-elect received the most votes in the election. Further assume that the local electoral board, pursuant to Virginia Code § 24.2-676, and the Board, pursuant to Virginia Code § 24.2-680, issued a certificate of election to the Delegate-elect, and that the Board, pursuant to Virginia Code § 24.2-680, certified the name of the Delegate-elect to the Clerk of the House. Further assume that the Delegate-elect meets all of the qualifications to hold the office, including those required by the Constitution of Virginia and the Code of Virginia. Finally, please assume that the opponent of the Delegate-elect in the election has properly instituted a recount proceeding pursuant to Virginia Code § 24.2-800, et seq., and that the proceeding is pending at the time the Designate-elect is scheduled to take office pursuant the certificate of election.
In rendering your opinion, please consider the Supreme Court of Virginia’s decisions in DeShazo v. Davis, 157 Va. 517, 162 S.E. 320 (1932) and Fleming v. Anderson, 187 Va. 788, 48 S.E.2d 269 (1948). In DeShazo, the Court stated:
Where one has been duly declared by proper authority to have been elected to office at an election authorized by law, has received a certificate of election, regular on its face, and has duly qualified for the office as required by law, he is prima facie entitled to the office at the beginning of the term for which he holds the certificate of election. Even though at the beginning of the term there is pending a proceeding to contest the legality of his election, he. . . [has] the better present, apparent legal right to the office, and it is the duty of the incumbent to deliver up the office to him . . . . This is true notwithstanding the pendency of a proceeding to contest the election, . . . .
DeShazo, 157 Va. at 521, 162 S.E.2d at 321. In Fleming, the Court cited this holding from DeShazo with approval. See Fleming, 187 Va. at 795, 48 S.E.2d at 273. Additionally, the Court in DeShazo cited cases from several jurisdictions for the same proposition. See, e.g., Richardson v. Blackstone, 135 Md. 530, 533, 109 A. 440, 442 (1920) (“A certificate of election having been issued by the clerk of the court, the appellee (assuming there was an election authorized by law) was entitled to the office to which he was returned elected, pending the decision of any contest, or other direct attack that might be instituted; and mandamus is the proper method of obtaining possession of such office.”).
Based on this case law, it would seem that in the question posed, the Clerk of the House is required to seat the Delegate-elect until or unless it is determined through a recount proceeding that the Delegate-elect did not receive the most votes in the election.
Additionally, the Constitution of Virginia sets out the qualifications of who may be elected to the House and they are limited to age of twenty-one (21), resident of the House district, qualified to vote for members of the General Assembly and not holding any office or post of emolument under the United States government. See Article IV, Sec. 4. The only other condition set out in the Constitution is that the individual must have been a resident of the Commonwealth for one year next preceding the election and qualified to vote for the office. See Article II, Sec. 5. Nothing as set out in the Constitution suggests that as a condition of office an individual must also await the outcome of any recount proceeding. Though Article IV, Sec. 7 does provide that “[e]ach house shall judge the election, qualification, and returns of its members,” this should not and cannot be construed to allow the House to add conditions beyond those set out in the Constitution.
As set forth by the Supreme Court of the United States “. the Constitution leaves the House without authority to exclude any person, duly elected by his constituents, who meets all the requirements for membership expressly prescribed in the Constitution.” Powell v. McCormack, 395 U.S. 486, 522 (1969). “The qualifications of the persons who may . be chosen, as has been remarked upon other occasions, are defined and fixed in the Constitution, and are unalterable by the legislature.” Powell v. McCormack, 395 U.S. at 540 (quoting The Federalist Papers 371 (Mentor ed. 1961)).
By not seating the Delegate-elect, it appears clear that the Clerk of the House is acting contrary to established Supreme Court of Virginia decisions and is improperly creating a condition for holding office in addition to those required by the Code of Virginia and the Constitution of Virginia, i.e., that the Delegate-elect is not entitled to be seated until the recount proceeding is concluded.
Based on the urgency of the situation, I would request your opinion as promptly as possible in order to ensure that there is no further delay in allowing the House of Delegates to have all eligible members participating in the important decisions that are facing the Commonwealth.
With kindest personal regards, I am
Ward L. Armstrong
cc: The Honorable Timothy M. Kaine, Governor
The Honorable William Howell, Speaker of the House
The Honorable Bruce Jamerson, Clerk of the House
Nancy Rodriguez, Secretary, State Board of Elections