Commentary

Virginia Governor Leaves GOP Senate Seat Vacant, Ensuring Progressive Dominance

By Hans Bader | January 12, 2021 | 5:28pm EST
Virginia Gov. Ralph North gives a speech. (Photo credit: RIC BARADAT/AFP via Getty Images)
Virginia Gov. Ralph North gives a speech. (Photo credit: RIC BARADAT/AFP via Getty Images)

Virginia's state senate had a narrow Democratic majority, with 21 Democrats and 19 Republicans. Then, on Jan. 1, Republican State Senator Ben Chafin died. Virginia's Democratic governor has delayed filling the seat, allowing progressive bills to pass the state legislature more easily and without being moderated by the amendment process.

In response to the governor's foot-dragging, the Dickenson County Board of Supervisors adopted a resolution on Jan. 11 calling on the governor to fill the seat and "schedule a special election."

A special election was set Tuesday afternoon, for the ridiculously late date of March 23 -- after the regular legislative session ends! That's nearly three months after the seat became vacant. By contrast, Gov. Ralph Northam filled a Democratic seat in Prince William County less than a month after a Democratic legislator resigned. Delegate Jennifer Foy, another Democrat, resigned from the House of Delegates on Dec. 8. Her successor was elected in a special election on Jan. 6.

Keeping the seat vacant will make it easier to pass progressive bills even when not all Democrats vote for them -- such as when a relatively moderate Democratic senator votes against a bill to release criminals earlier. That occasionally happened in 2020, such as when a Democratic senator voted against lowering the age of geriatric release for some criminals to age 50.

This delay in holding the special election seems like a deliberate attempt by Democrats to keep this Republican seat vacant -- and the senator's constituents disenfranchised -- during this session of the General Assembly.

Chafin's seat being filled would not enable Republicans to block most progressive bills from passing the legislature in some form, because Democrats would still control the legislature, and they usually vote in unison. But some progressive bills might have to be amended to remove some ideologically extreme provisions, in order to pass the closely-divided state senate (the way legislation allowing much earlier release for inmates who behave in prison was amended in 2020 to exclude some violent offenders, because one moderate-liberal Democrat on the Rehabilitation Committee wanted the bill amended).

Virginia's legislature is expected to largely abolish mandatory minimums in this legislative session. On Jan. 5, the Democrat-dominated Virginia Crime Commission voted 9-to-2 to abolish all mandatory minimums, without exception, for even the worst crimes, and to allow inmates serving such sentences to have their sentences revisited. Whether its proposed legislation will be amended might have depended on whether Chafin's seat was filled during the session. Since it will not be, all mandatory minimums may be abolished. If his seat had been filled, the Commission's proposed legislation may have had to have been amended slightly in order to pass the legislature, such as by excluding the worst offenders (such as those who murder police officers).

Proponents of mandatory minimums argue they reduce crime and eliminate disparities between similarly-situated offenders. By increasing punishment, they also deter some crimes from being committed. Crime in California fell significantly after California voters adopted Proposition 8, which mandated longer sentences for repeat offenders who kill, rape, and rob others. A National Bureau of Economic Research study found those longer sentences deterred many crimes from being committed. As it observed, three years after Proposition 8 was adopted, crimes punished with enhanced sentences had "fallen roughly 20-40 percent compared to" crimes not covered by enhanced sentences.

Hans Bader practices law in Washington, D.C. After studying economics and history at the University of Virginia and law at Harvard, he practiced civil-rights, international-trade, and constitutional law. He also once worked in the Education Department.

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