A catchy news headline about money in Australian politics captured the essence of the behavior of politicians: “If You Can Get Away With Things, You Do It.”
Pundits and political scribes are often inclined to remind readers in a sober manner that elections have consequences, and governing is not the same as campaigning. Enter Jason Miyares.
Mark Herring was sworn in on January 11, 2014, as Virginia’s attorney general, and for over four years thereafter, until July 2018, his office defended the district electoral maps drawn by a Republican-dominated legislature asserting their constitutionality. Costs for the defense were estimated at $5 million. Herring subsequently declined to defend the gerrymander plan following a decision by a three-judge panel finding the maps to be racially biased.
Upon assuming office, Herring indicated that the AG would not advocate the Commonwealth’s constitutional amendment banning same-sex marriage, leading to calls for his resignation. On June 26, 2015, 17 months after he took office, SCOTUS scuttled such laws. Former Virginia AG Ken Cuccinelli was quoted in The Washington Times as saying, “As attorney general, I had to defend gun regulations that I didn’t like but they were legal and they were defensible. I did my duty and I defended them. And Republicans and Democrats, as attorneys general, have always done that until Mark Herring.”
Indeed, Cuccinelli co-authored an amicus brief to SCOTUS in 2013 arguing that same-sex marriage could lead to polygamy, a statement recently reprised in the General Assembly in opposition to approval of language to add a referendum to the ballot to rescind the state’s constitutional ban against same-sex marriage. Translating polygamy into a legal and defensible argument, even for an AG like Cuccinelli, is a special gift. One day before his successor took office, Cuccinelli issued an official advisory opinion that the governor “may not direct or require any agency of state government to allow same-sex couples to receive joint marital status for Virginia income tax returns.”
The powers, authority, and scope of responsibility of state attorneys general are broad in representing the legal interests of the jurisdiction. While an attorney general may exercise some discretionary decision making, a principal obligation is to defend the undertakings of state agencies and express public law, as both Cuccinelli and Herring demonstrated.
The powers, authority, and scope of responsibility of state attorneys general are broad in representing the legal interests of the jurisdiction. While an attorney general may exercise some discretionary decision making, a principal obligation is to defend the undertakings of state agencies and express public law, as both Cuccinelli and Herring demonstrated.
In January 2020, Virginia became the 38th state (and final one for constitutional purposes) to ratify the landmark Equal Rights Amendment (ERA) legislation by a vote of 59-41 in the House of Delegates and 28-12 in the Senate, reflecting bipartisan support. The Archivist of the United States declined to record the amendment following a legal memo from the Department of Justice indicating that the time for ratification had expired. Virginia, Illinois, and Nevada, as the last three states to vote for ratification, joined the suit to mandate the ministerial obligation to record the legislation as the newest amendment to the Constitution.
Early this month, Virginia’s newly elected AG, Jason Miyares, declared that it was withdrawing from the lawsuit seeking to have the nation’s Archivist record the Equal Rights Amendment to the Constitution because it is “no longer the view” of Virginia. Similarly, last month, his office notified SCOTUS that the state was withdrawing from a previously submitted amicus brief opposing the Texas abortion ban on the grounds that Roe v. Wade was incorrectly decided and codified by decades of “constitutionalization” of federal jurisprudence. This too, the AG asserted, was “no longer the view” of Virginia.
That Virginia is “no longer of the view” is a presumptive representation of the margin of 27,536 votes out of 3.3 million cast to elect Miyares.
That Virginia is “no longer of the view” is a presumptive representation of the margin of 27,536 votes out of 3.3 million cast to elect Miyares. One early opinion poll also indicates that the views of voters on abortion are more contrary than similar to those elected to the Commonwealth’s top three offices.
The language employed by Miyares more accurately reflects the political canard about elections having consequences, but it is distant from a compelling legal analysis and the reality of governance versus campaigning. Federal courts including the Supreme Court have not supported actions by states to rescind ratification of amendments and, as advocates demonstrate, the Constitution has no provision for rescission, only ratification. While Miyares has asserted that the ERA is no longer the view of Virginia, there has been no legislative action to rescind or reverse the January 2020 ratification. Nor has the AG offered a legal opinion as to the vitality of the legislature’s vote.
Before leaving office, Herring issued a legal advisory opinion, saying, “[t]here is thus no federal authority from which I could conclude that a state may rescind its ratification of a constitutional amendment, after such ratification vote has occurred. This conclusion is supported by Virginia law, which speaks only to ratifications, and does not confer any method by which to rescind them. The same conclusion has been reached by other states confronting the question of whether ratification may be withdrawn. I agree that ‘a ratification once given cannot be withdrawn.’”
On March 5, 2021, a U.S. District Court judge said that the plaintiffs’ “laudable” motives in Virginia v. Ferriero were insufficient, because the deadline set by Congress for the ratification period is valid. He said the Archivist’s failure to publish and certify the amendment, which are “formalities with no legal effect,” does not by legal definition cause harm, so the states have no standing to sue. The plaintiffs have appealed the ruling, and on January 10, 2022, 13 amicus briefs were filed in support of their brief in the lawsuit. The government’s brief is due on March 4, and oral arguments may be scheduled as soon as late spring.
As AG, Cuccinelli offered no legal opinion that same-sex marriage actually caused polygamy, only that it might be inferred intellectually. When SCOTUS neutered the same-sex constitutional ban under the Commonwealth’s constitution, AG Herring did not need to issue an advisory legal opinion on the ban. Perhaps Miyares may yet do so. As it stands, however, the ERA remains legally viable as legislation by the General Assembly with hearings to continue. Virginia, however, will not be present to represent its interests or that of the legislature at future hearings.
Shortsightedness or myopia in the political realm may be dangerous as elected leaders navigate the ship of state on behalf of its citizen passengers. When ideological blindness is the disease, consequences may be more severe. In any event, the Australian observation applies in the US of A as long as they can get away with it. Voters are the sole cure for political myopia and modifying ideology.
Categories: democrats, elections, GERRYMANDERING, Issues, legislature, National, political parties, politics, republicans, RULE OF LAW, SCOTUS, State
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