The following is a guest post from Josh Blackman:
In Virginia, the Governor, Lieutenant Governor, and Attorney General are all being called upon to resign. If the Governor resigns, Article V, Section 16 of the Virginia Constitution provides a fairly clear order of succession:
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. If a vacancy exists in the office of Lieutenant Governor when the Lieutenant Governor is to succeed to the office of Governor or to serve as Acting Governor, the Attorney General, if he is eligible to serve as Governor, shall succeed to the office of Governor for the unexpired term or serve as Acting Governor. If the Attorney General is ineligible to serve as Governor, the Speaker of the House of Delegates, if he is eligible to serve as Governor, shall succeed to the office of Governor for the unexpired term or serve as Acting Governor. If a vacancy exists in the office of the Speaker of the House of Delegates or if the Speaker of the House of Delegates is ineligible to serve as Governor, the House of Delegates shall convene and fill the vacancy.
However, the Virginia Constitution does not explain what happens if the Lieutenant Governor resigns. The Virginia Attorney General recognized this gap in a 1982 opinion:
There is no provision in the Constitution of Virginia (1971) which expressly deals with filling a vacancy solely in the office of Lieutenant Governor. Article V, § 16 acknowledges the possibility of such a vacancy by providing that the Attorney General shall succeed to the office of Governor if a vacancy exists in the office of Lieutenant Governor when the Lieutenant Governor is to succeed to the office of Governor. Neither is there a statute which expressly deals with filling vacancies in the office of Lieutenant Governor.
What, then, happens if the Lieutenant Governor resigns? In the immediate aftermath of the vacancy, Section 24.2-212 would kick in. It provides:
“When a vacancy occurs in the office of Lieutenant Governor, the duties of that office shall be discharged by the President pro tempore of the Senate, but he shall not by reason thereof be deprived of his right to act and vote as a member of the Senate.”
However, the Attorney General concluded that the President pro tempore would only serve until the Governor made a unilateral appointment pursuant to Article V, Section 7. It provides:
“The Governor shall have power to fill vacancies in all offices of the Commonwealth for the filling of which the Constitution and laws make no other provision.”
The Attorney General concluded that:
“neither the Constitution nor § 24.1-84 [currently codified at 24.2-212] provides a method for filling a vacancy in the office of Lieutenant Governor. Consequently, I conclude that the Governor is empowered to fill such a vacancy under Art. V, § 7 and § 2.1-18.”
In other words, the Governor has the unilateral power to appoint the Lieutenant Governor—that is his successor. And that person would serve until the next election.
There is another reading. The Virginia appointments clause gives the Governor plenary appointment powers “for which the Constitution and laws make no other provision.” Would Section 24.2-212 be such a law that “makes other provisions”? In other words, Section 24.2-212 would create a special carve-out to the Governor’s general unilateral power.
As a structural matter, this alternate reading makes sense. Consider the 25th Amendment as an analogy. It provides: “Whenever there is a vacancy in the office of the Vice President, the President shall nominate a Vice President who shall take office upon confirmation by a majority vote of both Houses of Congress.” After the resignation of Vice President Spiro Agnew, President Nixon was only able to select then-House Minority Leader Gerald Ford as his VP with the consent of Congress. It would have been untenable for Nixon to select a crony who would replace him following resignation. This situation somewhat resembles the crisis in Virginia, where the Governor is also under calls to resign.
If the Lieutenant Governor resigns, and the Governor makes an appointment, the President Pro Tempore would have standing to challenge his displacement from office.