By: Cody Brandon
In October of last year, the State of Elections blog previewed an appeal to the Supreme Court of Virginia questioning the requirements of Virginia Code §§ 24.2-233 and 235. The Court, on March 1, 2018, answered those questions. As predicted, this decision will have a substantial impact on the process for removing elected officials in Virginia. For a detailed discussion of the history of the case and the arguments of the parties, read the original post previewing the case. This post will cover analysis of the opinion and its effect.
Commonwealth v. Williams began as an action to remove Erica W. Williams, Clerk of the Circuit Court for Montgomery County, from office. Virginia is one of the few states that does not use recall elections to remove elected officials, but instead allows a removal proceeding to be initiated by a certain number of voters and played out as a prosecution by the Commonwealth (representing the voters) against the elected official. The controversy in Williams was over how to initiate such a proceeding.
There are two primary statutes that govern the petition process for removing an elected official. Virginia Code § 24.2-233 requires that a petition to initiate removal proceedings be signed by a number of registered voters equal to ten percent of the number of total votes cast in the previous election for the office. The petition in this case included over 1,800 signatures of registered voters, and approximately 18,000 people voted in the prior election for the office. Virginia Code § 24.2-235 also requires that the petition be signed “by the person or persons making it under penalty of perjury.” Only 50 registered voters signed under penalty of perjury. The crux of both oral argument and the Court’s opinion was determining who “made” the petition and was subject to the penalty of perjury requirement. If only the drafters were the “makers,” then the petition would be valid. However, if every signator of the petition were the “makers,” then all 1,800 registered voters would need to sign under penalty of perjury, leaving the petition at issue (with only 50 signatures under penalty of perjury) woefully inadequate.
The Court held that the requirement of § 24.2-235 did in fact apply to every person who signed the petition, and, therefore, that the circuit court did not err in dismissing the petition for insufficient signatures. It did so by beginning with the notion that the removal statutes were “highly penal in nature” and must be strictly construed. As a result, the Court focused heavily on the language not only § 24.2-235, but also the surrounding statutes. When § 24.2-235 was viewed as the procedural criteria for petitions arising under two separate removal processes (for elected officials under § 24.2-233, and for appointed officials under § 24.2-234), the Court found that the plain language identified the “makers” of a petition as the group that must sign it – the registered voters.
This holding is not without controversy. The decision explicitly contradicts the 1989 Opinion of the Attorney General (1989 Va. Op. Atty. Gen. 221, 223) that argued applying the penalty of perjury requirement to every registered voter would be overly burdensome. It also may contradict dicta from Johnson v. Woodard, if you read the case the same way as the dissent.
What is most important, though, is what effect this decision will have on future removal petitions. These removal statutes are not common in other states and have seldom been addressed by Virginia courts, so Commonwealth v. Williams provides some much-needed clarification of the removal process. As noted in the preview post, the Court’s refusal of appeal on some issues suggests that petitioners can recite the language of § 24.2-233 as “grounds for removal” in their petition. Now we also know that in order to meet the signature requirement, petitioners must collect signatures under penalty of perjury of a number equal to ten percent of the votes cast in the previous election for the office. This threshold is not unattainable, but it requires greater attention to detail from drafters and circulators of these petitions. Furthermore, the strict construction of the statute requires caution and increased investigation by voters approached by circulators. Signing one of these petitions that includes false allegations could subject thousands of voters to charges of perjury. In every case, it would benefit candidates, voters, drafters, circulators, and attorneys to take the removal process seriously and methodically and to do their research before becoming involved in removal proceedings.