Virginia: Can the Governor be recalled? And what is Virginia's unique Recall Trial law?

Virginia Governor Ralph Northam has been under a deluge of calls for his resignation since the revelation that his medical school yearbook has a picture of a man in blackface and another in a KKK outfit. Despite a poorly received press conference, Northam has so far refused to resign. So, let's ask the question that naturally would come to this blog -- In the (frankly unlikely) case Northam does not resign, can he be removed by a recall vote? Due to two factors, the evidence would suggest that a Virginia Governor can't be recalled, though there is some slight room for uncertainty. Let's look at some of the strange issues regarding the recall in Virginia:

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.

3) Who replaces the elected official? The provision doesn't specify any replacement mechanism, which itself is unusual. Presumably, a recalled official would be replaced in the same fashion as an impeached one -- by the Lieutenant Governor. But if Republicans wanted to test one provision to capture the Governor's mansion, this would certainly be it. In some recalls in Virginia, the position has been filled by an appointment (though that is under local recall laws). If the legislature could select a replacement (and the GOP controls both house of the legislature), this would presumably be the only way to do it.

4) So how often does a recall trial happen? That is unclear. I'm not sure any has actually occurred. In one of the attempts that I've documented since 2011, the judge threw out the recall of Loudon County Supervisor Eugene Delgaudio (R) before it got to a trial stage. In another, against Norfolk County Treasurer Anthony Burfoot (D), petitioners seemed to get enough signatures, but the recall trial was held up until he was convicted of a crime and then automatically removed from office. In the Burfoot case, the prosecutor claimed that he would not try the recall trial because the criminal action took place when Burfoot was a councilman, not as treasurer. The article on Delgaudio notes another case that was thrown out -- that one involved a Supervisor in 1997, though it is not clear if it went to an actual recall trial or not.

Virginia has had a number of recall elections, which are allowed at the local level. One official, former Portsmouth Mayor James Holley III, was even recalled and removed twice.

5) While not on point, it is interesting to compare this to Oregon Governor John Kitzhaber, who resigned after facing ethical questions in 2015. Oregon did not have an impeachment provision, but it did have a recall law. The fact that he was threatened with recalls may have hastened the Kitzhaber resignation. While I wouldn't expect Northam to stay in office, a clear recall law may make the resignation a more likely and quicker occurrence.