Who can account for the missing nineteen legislators?

Further to the 26 delegates who didn’t vote and the 10 delegates who abstained from voting for Tracy Thorne-Begland’s judicial nomination, I want to highlight Del. Jennifer McClellan’s comments explaining the distinction:

For the record, 4 delegates were not present at all on Monday due to “pressing personal business” (which is how excused absences are recorded in the House Journal): The Speaker, Bob Brink, David Englin, and Margaret Ransone. I know Brink and Englin would have voted yes, and would have been there if they could.

Several members had already left by the time of the vote (which was around 1:15 am). I don’t recall all of them, but I know Habeeb, Tyler, Joannou, had already left before we started considering judges.

The tradition/protocol in the General Assembly is not to vote No on a judge. If you can’t support them, you don’t vote. It is rare to vote No. It is even rarer to abstain. House Rule 69 says it all:

Rule 69. Upon a division of the House on any question, a member who is present and fails to vote shall on the demand of any member be counted on the negative of the question and when the yeas and nays are taken shall, in addition, be entered on the Journal as present and not voting. However, no member who has an immediate and personal interest in the result of the question shall either vote or be counted upon it.

Had the hour not been so late, someone might have had the presence of mind to demand that those in their seats and not voting be counted as voting no. But I think it is safe to say that was their intention.

I really wonder what “immediate and personal interest” in Tracy’s appointment the 10 members who abstained had. I am fairly certain none of them are related to him.

So of the 26 delegates who did not vote, we know that 7 (Habeeb, Tyler, Joannou, Brink, Englin, Ransone, and Howell) were not present. That leaves 19 unexplained. (C. Todd Gilbert (R-Shenandoah), Christopher T. Head (R-Roanoke), Joseph P. Johnson Jr. (D-Washington County), S. Chris Jones (R-Suffolk), Joe T. May (R-Loudoun), Jackson H. Miller (R-Manassas), J. Randall “Randy” Minchew (R-Leesburg), Richard L. Morris (R-Isle of Wight), John M. O’Bannon III (R-Henrico), Robert D. Orrock Sr. (R-Caroline), Christopher K. Peace (R-Hanover), Kenneth R. Plum (D-Fairfax), Harry R. Purkey (R-Virginia Beach), Robert Tata (R-Virginia Beach), Roslyn C. Tyler (D-Sussex), Onzlee Ware (D-Roanoke), R. Lee Ware Jr. (R-Powhatan), Michael J. Webert (R-Fauquier), Thomas C. Wright Jr. (R-Lunenburg), and David E. Yancey (R-Newport News).) Were they actually absent, or did they just sit on their hands when it came time to vote?

Just at a glance, I have to note the extraordinary coincidence that of these nineteen legislators, there are only three Democrats. No Democrats voted against Tracy. With a random distribution of absenteeism, we’d expect six Republicans to those three Democrats. Instead, we see Republicans overrepresented by 160%. The simplest explanation for this is that a bunch of these Republicans were sitting on their hands.

This isn’t just important in the abstract, but also because it goes to my assertion that those who failed to vote could have stopped the torpedoing of Tracy’s nomination, but failed to do so. As 51 votes are required for a nomination, he was actually 20 short, so the 10 abstentions wouldn’t have made the difference. Nineteen did not vote at all, but may have actually been there.

Did you see any of these nineteen on the video during the debate early yesterday morning? Let’s tally them up. Let’s find out who was absent, and who really knew that what they were doing was wrong, but didn’t want their position to show up on their voting record.

Published by Waldo Jaquith

Waldo Jaquith (JAKE-with) is an open government technologist who lives near Char­lottes­­ville, VA, USA. more »

17 replies on “Who can account for the missing nineteen legislators?”

  1. You aren’t wrong, Waldo, that these non-votes might have turned the tide, but as Jen explains, it is tradition to Not Vote rather than cast a No vote against a nominee if one opposes him or her. Doesn’t mean the non-votes don’t have explaining to do, but it seems more pressing that so many would actually go the distance of casting “No” votes (or abstaining), making more of a statement in its rarity than the non-votes, which are the traditional means of opposing. I think they all have explaining to do, regardless, but I think those who dared to vote No are more actively staking out their ideological territory.

  2. I appreciate the tradition. Slavery, though, was also a tradition. So I’m not real impressed by that as an argument to continue a practice when faced with a genuine test of one’s moral fiber.

  3. I think it’s obvious I wasn’t making an argument in support of the tradition — simply an explanation and a recognition that one of the main aberrations here was that so many dared to vote No.

    I was at the Assembly every single day this session, watching all the tests of moral fiber as they unfolded, and being on the short end of quite a few of those tests, depending on what bill I was working on. They are all accountable for all of it, was my point.

  4. Opposing the appointment is not necessarily tantamount to “wrong.” Maybe they have a genuine conviction to the contrary, and taking a moral stand in an unfriendly environment is more courageous than bigoted.
    Just because you disagree doesn’t mean they need to be “called on the carpet.” Their views are already public knowledge, and the votes (or non-thereof) were pretty consistent with public statements.
    What’s to explain? You just disagree.

  5. I think any member who does not vote Yes or No on any question should have to file a timely explanatory statement for the public record. The primary purpose of a legislator is to vote, and if there’s a good reason why that can’t happen (such as a personal emergency or a conflict of interest), it should be easy to state.

    As for the “tradition” described above, I don’t think it’s a very good one. Judges are important — heck, all votes should be important or they shouldn’t be happening — and a delegate ought to be able to say whether a given candidate should or shouldn’t be elected. Plus, I’m not sure how strong of a tradition it is if nearly a third of the body chose not to follow it. Although I suspect that nearly all of those members voted No for the wrong reasons, at least they had enough character to vote at all.

    (P.S. I bet you could write a little code to figure out which delegates voted shortly before and/or after this vote, and thus were presumably available. At the very least, I would start with anyone who made a floor speech on this very issue and then didn’t vote on it.)

  6. The main “tradition” is not letting a judicial nominee get to this stage if there are actual, serious concerns about his or her ability to do the job. Tracy, as with the other nominees, was vetted: was backed unanimously by his local delegation (from both parties), the Bar vote, etc., and had been certified by the Courts of Justice committees. It’s happened before, but it’s uncommon, and certainly not in this way. The main point isn’t necessarily that some didn’t vote, it’s that they *all* could have chosen not to discriminate, and with a few exceptions of those who might have been absent entirely, most went with bigotry. There were zero indications that Tracy would have done anything other than uphold the law and the Constitution, and he was overwhelmingly lauded as a valuable member of the Bar and the community. They all made a choice, even if it was inaction, and they are all accountable for that — or should be. Procedurally, someone could have called for all the non-votes to be counted as No votes, regardless of intentionality.

    If we are saying that a non-vote is somehow worse, then the entire Senate should be held accountable as well, as they simply passed his vote by rather than putting their individual votes on the record (despite Don McEachin’s valiant attempt to force a vote).

  7. I’m not necessarily going to call a non-vote “worse” than a No vote, but it’s also wrong. And whereas whether to vote Yes or No on any question can be (and in Virginia usually is) the subject of much debate, I hope we can all agree that legislators who are elected and paid to vote should vote. So except in narrow cases, I think intentionally not voting is categorically wrong.

    As for the Senate, 39 of the 40 senators did in fact vote. Since a vote to pass by the question had the same effect as voting no on it, I don’t think it counts as not voting at all in the way that the House 36 did.

  8. I think it’s obvious I wasn’t making an argument in support of the tradition — simply an explanation and a recognition that one of the main aberrations here was that so many dared to vote No.

    Absolutely! I didn’t mean to imply to the contrary. But I do agree entirely with Craig on this—that this is a tradition that serves, I suspect intentionally, to disguise the actions of a legislator. It’s great that legislators understand what a non-vote means, but it’s entirely opaque both to citizens and to history.

    Opposing the appointment is not necessarily tantamount to “wrong.” Maybe they have a genuine conviction to the contrary, and taking a moral stand in an unfriendly environment is more courageous than bigoted.

    I disagree entirely. If they opposed an appointment because somebody was black, that would be wrong, no matter their genuine conviction. That wouldn’t be courageous, that would just be disgusting.

    Just because you disagree doesn’t mean they need to be “called on the carpet.” Their views are already public knowledge, and the votes (or non-thereof) were pretty consistent with public statements.

    Their views are not public knowledge, nor are there such public statements. I mean, if you can find a record of all of these nineteen legislators saying if they think that somebody’s sexuality should factor into whether they can be a judge then, please, point me to them!

  9. Waldo, I don’t think we really disagree, in substance. And full disclosure: I’ve also been the beneficiary before of certain legislators “taking a walk” on a vote when they couldn’t fully support my position on a bill I’m working on but at least agreed they wouldn’t be against me, either. So while I’m certainly not endorsing it as a habit, I would be a hypocrite if I didn’t admit I’ve also benefited from this practice. So goes the old saying about laws and sausages.

  10. I have the tally sheets for all the judicial votes. I haven’t had time to go through them yet in order to find out who left and who just avoided the vote but I can email them to you.

  11. Waldo, you were watching that night also, and saw how fast the votes were happening, so no one could have missed only this one vote on a bathroom break. Before and after the votes were 82-0 for judges, so its fair to assume that 18 were actually gone. I also would like to see that list matched up to who refused to vote.

  12. Craig is right that if it looks like a judge will be controversial or defeated, that judge’s nomination is typically withdrawn to spare him or her the ugliness of a floor fight (that is the charitable explanation) or spare House members (typically in the majority) a tough vote (the cynical view) or to allow the delegation to find a compromise candidate.

    To his credit, Manoli Loupassi refused to bow to enormous pressure to withdraw Tracy’s nomination. Manoli believed it was the right thing to do, particularly when he was unanimously certified by the Courts Committee with very few questions and no concerns raised and no opposition from anyone until the Family Foundation sent their email on Friday and Bob Marshall announced he would fight the nomination.

    Tracy hid NOTHING on his judicial questionnaire. The only question he was asked about his military record was “What kind of plane did you fly.”

    And during the floor debate, those retired colonels distorted Tracy’s record. Tracy did not violate the Military Code of Conduct or his oath. He did not criticize or challenge his chain of command or refuse to follow orders. If he had done any of that, he would not have been HONORABLY discharged (and not once, but twice) and given a medal for outstanding service when he was discharged.

    Tracy did not advocate for a partisan or political cause or candidate. He went on Nightline in civilian clothes and said “I am gay.” What is partisan about that? Whether the Right Wing of the Republican Party wants to admit it or not, there are gay Republicans (although my guess is maybe not so many for much longer). Tracy told the truth because it was the right thing to do. And he was vindicated for it when the military LEADERSHIP agreed with their Commander in Chief that soldiers should not be forced to lie for the privilege to risk their life for their country.

  13. Delegate Minchew stated in an e-mail “I chose not to support his nomination on the floor because I later learned of certain conduct offenses he committed as an officer in the United States Navy after our Committee interview. I have real respect for our armed forces and our veterans and I give great deference to the thoughts and opinions of my veteran colleagues in the House. I found their unrebutted testimony that Mr. Thorne-Begland had engaged in conduct contrary to the Uniform Code of Military Justice compelling and I did not discern from his record any regret or even acknowledgement that he had violated the oath he took when he was commissioned an officer in the United States Navy through his public actions.”

    But those allegations were unrebutted because DEBATE WAS CUT OFF. I had my light on to set the record straight. Tracy did not engage in conduct “contrary to the Uniform Code of Military Justice”. Jackson Miller called the pending question.

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