Could Va. Gov. Northam Face a “Recall Trial?”

Joshua Spivak:


1) Virginia has an unusual recall provision called a “recall trial.” No state has this provision — it is not clear any place in the world has it. The recall trial is a modification of what we call the judicial recall/malfeasance standard, with a very big twist.

Under the recall trial standard, voters would have to gather signatures equal to 10% of turnout in the last election. Then, instead of a vote, a judge would hold a trial to determine if the elected official violated a specified list of statutory rules. The list includes neglect of duty, misuse of office, incompetence and conviction on a number of misdemeanors (one of the specified misdemeanors is a “hate crime” — though I can’t imagine any criminal charges).

Having a specified “for cause” list of actions required for removal is not unusual. Among the states that have recalls on the state level, seven have this judicial recall/malfeasance standard criteria (Alaska, Georgia, Kansas, Minnesota, Montana, Rhode Island, Washington). This greatly limits the amount of recalls — such recalls attempts are generally thrown out very early in the process.

What is unusual is having a trial rather than an election. I’m not sure how this provision came about, but no one else seems to have it.

Would Northam be found guilty and removed in a recall trial? It seems extremely unlikely — it is not clear what charges could be filed. However, there are very few recall trials in Virginia history (see below), so we can’t read much into past practices.

2) Does the Governor even fall under this provision? The applicability portion of the code states that the law: “shall apply to all elected …. officers…. except officers for whose removal the Constitution of Virginia specifically provides.” This may mean that the recall may not cover Governors, who face impeachment under the Constitution. Again, this would need to be tested in court for a final answer….

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