MARY LOUISE KELLY, HOST:
There are many scenarios that could possibly play out next in Virginia, many combinations of resignations or impeachments and appointments. So what does the Virginia constitution have to say about these possible scenarios? We are joined now by someone who knows that document inside and out. Professor A.E. Dick Howard of the University of Virginia, he helped write the state's current constitution, which went into effect in 1971.
A E DICK HOWARD: Good to be with you.
KELLY: So I'm doing the math. And you must have been in your 30s when you helped to write this.
HOWARD: I was. I was in my early 30s when I was executive director to the commission that did the drafting.
KELLY: And is this the biggest constitutional challenge the state has faced since you helped write that document?
HOWARD: (Laughter) I think so. It's been a fairly...
KELLY: You hope so.
HOWARD: It's been a fairly quiet cruise since 1971. And I can assure you the drafters, in their wildest imagination, never dreamed of the scenario we're now witnessing unfold.
KELLY: Wow, all right. Well, let's talk a little bit about this scenario. And I'll start with the possibility of impeachment. But first of all, has anybody ever been impeached in modern Virginia history?
HOWARD: Not to my knowledge I'm aware of any governor or any other state official being removed by way of impeachment.
KELLY: So this is uncharted waters. But what does the constitution have to say about it? What are the standards?
HOWARD: The standards are not unlike the federal constitution, but they are a bit different. Both documents use the phrase high crime and misdemeanor. But the Virginia Constitution says that the impeachment process lies for malfeasance in office, corruption, neglect of duty or other high crimes or misdemeanors.
And it seems to me the natural reading of those several items of conduct is that somehow the conduct that's being complained of should relate, in some fashion, to the performance of one's duties. Impeachment doesn't lie for any kind of complaint against the official, but it has to somehow involve what one is doing in office.
KELLY: And we should note that all of the offenses or alleged offenses that Virginia's top three elected officials are facing are for years before they came to political office.
HOWARD: That's right. And certainly, the officials, if one of them were subject to impeachment, would say whatever you think of that conduct, it really is not something that's within the bounds of impeachment.
KELLY: It would fall to the Virginia House of Delegates to decide whether impeachment is the way to go. How much leeway do they have in interpreting the constitution?
HOWARD: Well, I think they have a lot. I would be surprised if the Virginia Supreme Court were willing to second-guess the House of Delegates. I suppose they might step in if the process were wildly unfair, if the House sought impeachment because you had unpaid parking tickets or something like that. But I think in general, courts would be inclined to say this is in the technical sense a political question.
KELLY: Why did the constitution need rewriting in 1971, by the way?
HOWARD: Well, it was - before that, we had the 1902 constitution, which was thoroughly racist. It provided for segregated schools; it had the poll tax. It was written at a time - post-Reconstruction era, when all the Southern states that had passed through the Reconstruction era were rewriting their state constitutions with the deliberate purpose and effect of excluding as many black voters as they could.
KELLY: That's fascinating. So the reason that you went in - that a commission was formed to rewrite it was specifically to bring it up to date in terms of dealing with race.
HOWARD: That's exactly right. So many things were happening that really made it important to bring the constitution up to date. And when it went to the vote of the people in referendum, it was approved by 72 percent of the people. So it was kind of a golden age of comity in Virginia politics of a kind that we may not see again.
KELLY: Professor A.E. Dick Howard of the University of Virginia, thanks so much for your time.
HOWARD: My pleasure. Transcript provided by NPR, Copyright NPR.