A lot of people have been asking me what the deal is with the two proposed constitutional amendments that we Virginians will be presented with Tuesday. Here’s a brief explanation of each.

Amendment 1: Eminent Domain

Shall Section 11 of Article I (Bill of Rights) of the Constitution of Virginia be amended (i) to require that eminent domain only be exercised where the property taken or damaged is for public use and, except for utilities or the elimination of a public nuisance, not where the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development; (ii) to define what is included in just compensation for such taking or damaging of property; and (iii) to prohibit the taking or damaging of more private property than is necessary for the public use?

That’s the question that will actually appear on the ballot. Here’s the text that would be added to the constitution:

That the General Assembly shall pass no law whereby private property, the right to which is fundamental, shall be damaged or taken except for public use. No private property shall be damaged or taken for public use without just compensation to the owner thereof. No more private property may be taken than necessary to achieve the stated public use. Just compensation shall be no less than the value of the property taken, lost profits and lost access, and damages to the residue caused by the taking. The terms “lost profits” and “lost access” are to be defined by the General Assembly. A public service company, public service corporation, or railroad exercises the power of eminent domain for public use when such exercise is for the authorized provision of utility, common carrier, or railroad services. In all other cases, a taking or damaging of private property is not for public use if the primary use is for private gain, private benefit, private enterprise, increasing jobs, increasing tax revenue, or economic development, except for the elimination of a public nuisance existing on the property. The condemnor bears the burden of proving that the use is public, without a presumption that it is.

This is in response to the 2005 Kelo v. New London decision, in which the Connecticut city condemned private land to transfer it to another private owner for an ostensibly higher economic purpose. In a 5-4 decision, the Supreme Court ruled in favor of New London, and the decision was not entirely well received by the public. In the 2007 session of the Virginia General Assembly, they responded to this decision by passing SB1296, which created § 1-219.1—Limitations on eminent domain, providing a narrow interpretation of the definition of “public use” as used in the constitution, so as to prohibit a New London-style taking. That settled the matter. And yet this proposed constitutional amendment.

A lesser problem with this amendment is that it doesn’t fit in at all with the rest of the constitution. Constitutions are for broad, simple statements to be built upon in statutory and case law. This amendment is very, very wordy, and very specific. It’s 250% as long as the Article I, Section 12, which guarantees freedom of speech, freedom of the press, freedom of assembly, and freedom to petition the government. All too often, the legislature uses Virginia’s constitution as a dumping ground for reelection fodder, converting statutory laws into constitutional law to no apparent benefit (e.g., constitutional regulation of oyster beds—seriously).

This a poorly written, overly specific amendment that does nothing. It’s opposed by nearly every locality in Virginia. I intend to vote against it. It will almost certainly pass.

Amendment 2: Legislative Sessions

Shall Section 6 of Article IV (Legislature) of the Constitution of Virginia concerning legislative sessions be amended to allow the General Assembly to delay by no more than one week the fixed starting date for the reconvened or “veto” session when the General Assembly meets after a session to consider the bills returned to it by the Governor with vetoes or amendments?

The legislature meets in January and February, and then they go home for a while while the governor considers the bills that they passed. Then they get together again in early April, generally just for one day, to vote on whether they want to override any of the governor’s vetoes. They’re constitutionally required to meet on the sixth Wednesday after the session ends.

The problem here is that the veto session date often falls during Passover, the week-long Jewish high holiday. My guess is that there were zero Jews in the General Assembly when this bit of the constitution was written. That’s no longer the case. This amendment lets them pick a different day within a week of the constitutionally prescribed day. This amendment passed the House and Senate unanimously, and there is no organized public opposition to it (or disorganized opposition, that I know about). I can envision no harm in it, and I’m happy to support it.

With last week’s news that Rep. Robert Hurt was a no-show at the Senior Statesmen of Virginia’s candidates forum in Charlottesville, I think it’s time to revisit Hurt’s claim of accessibility two years ago, when he was running to unseat Rep. Tom Perriello:

Hurt was also asked if voters should expect him, if he is elected, to hold a similar number of town hall meetings as Perriello has over the last two years. During the run-up to the health care reform debate, Perriello held more town hall meetings with constituents than any other congressman.

Hurt declined to commit to holding a specific number of town hall meetings, but promised to listen to constituents.

“I can promise you this, I will certainly be as accessible if not more accessible than Congressman Perriello has been,” Hurt said.

Note the use of the word “promise.”

When I noted this at the time, I assumed that if Hurt won, I’d need to count his appearances to demonstrate that he was less accessible than Perriello, as he unquestionably would be. But now it’s clear that there’s simply no point—Hurt isn’t even in the same ballpark as Perriello was on this front.

Maybe Politifact can do the math on this one. I’m hopeful that the Daily Progress‘ change in ownership—along with the rest of Media General’s papers—might lead to an editorial board that will make endorsements and write editorials that perhaps vaguely align with the interests of the area. Perhaps they’ll see fit to revisit this claim.

In the Daily Progress today, Graham Moomaw’s coverage of the Republican Senate candidates’ remarks to a tiny gathering of Charlottesville Republicans contains a few great nuggets. First, Del. Bob Marshall bragging that in twenty years as a legislator, he hasn’t learned anything:

During his speech, Marshall portrayed himself as a savvy hard-liner who would hold fast to his principles.

“If you elect me, I’m going to cause liberals the same number of headaches, actually more, in Washington than I’ve done in Richmond,” he said, summing up his campaign. “I haven’t changed my views on one thing.”

Then Marshall demonstrates very clearly that he has no idea what “civil right” means, conflating the African-American civil rights movement with the concept of civil rights:

“Did you ever see water fountains in Virginia that say heterosexuals only? I didn’t. Did you ever see statements that all the homosexuals are going to ride on one bus and heterosexuals on the other? No…,” Marshall said. “It is an insult to suggest that the efforts of Dr. Martin Luther King and Rosa Parks are in any way parallel to the efforts to do things that have been criminal for most of this nation’s history.”

Marshall made this so-outlandish-it’s-almost-funny claim:

Marshall also was asked whether he believes consensual gay sex is protected by the U.S. Constitution.

“The court says it is in certain limited circumstances. But you know what that behavior does? It cuts your life by about 20 years,” Marshall answered. “It causes increased health problems. It doesn’t serve the common good to promote this.”

This is an item of faith that’s been passed around anti-gay circles for years now, based on a single, long-discredited study. I think it’s interesting that Bob Marshall is campaigning as a Tea Party candidate while arguing that it’s government proper role to regulate people’s behavior in the name of improving the nation’s collective health, the very objection that the same group has to national healthcare. This is a reminder that their real objection is to President Obama and gay people, and not actually to any consistent set of beliefs.

Finally, from Bishop E.W. Jackson (who?):

Jackson brandished a star-spangled axe during his speech, calling it a “symbol of the seriousness” with which he takes the nation’s fiscal situation.

“This is a symbol of what I intend to use to cut the budget,” Jackson said. “…I want to use this on Obamacare. I want to use it on the Department of Education and the EPA [Environmental Protection Agency], Freddie Mac and Fannie Mae and the United Nations.”

Tres serious, Bishop Jackson.

This blazing insight all came at the Hibachi Grill buffet, the latest in a series of depressing watering holes that area Republicans have used as their event venue as long as I can remember. It sounds like it was quite a night for the thirty attendees.

I can now say for sure which delegates were actually present at yesterday morning’s vote on Tracy Thorne-Begland’s nomination, and just pretending that they weren’t there.

Anna Scholl was kind enough to send me the House of Delegates’ vote tallies for judicial nominations on Monday night / Tuesday morning, towards the goal of identifying who sat on their hands and didn’t vote. Of the 26 people who did not vote, Del. Jennifer McClellan reports that Habeeb, Tyler, Joannou, Brink, Englin, Ransone, and Howell were all legitimately absent. So now to find out what’s up with the remaining nineteen. There are two sources of information that help us figure that out.

First, the vote tallies. The vote on Tracy was held at 1:12:56 AM. There was a vote held on another judicial nomination mere seconds earlier, at 1:12:33. And a vote held on another judicial nomination just seconds later, at 1:13:19. Here’s a table listing every delegate who did not vote on each of those three occasions:

One can immediately see who was present 23 seconds earlier, disappeared from the chambers (according to the official record), and then returned 23 seconds later: Todd Gilbert (R-Shenandoah), Christopher Head (R-Roanoke), Joe Johnson (D-Washington County), Joe May (R-Loudoun), Jackson Miller (R-Manassas), Randy Minchew (R-Leesburg), Richard Morris (R-Isle of Wight), and R. Lee Ware (R-Powhatan). These are our eight “Profiles in Courage” legislators—guys who failed this little test of basic human decency, who knew that they were doing something wrong, but didn’t want it on their permanent record.

Then there’s our second source of data, Andy Jenks’ coverage for NBC-12. Jenks is doing something standard for blogs, but extraordinary for news stations—he’s e-mailed every legislator who did not vote, asking what their excuse is, and updating his story as their answers come in. Everybody who the tally indicates was absent who responded to him confirmed that they were, indeed, absent. Minchew confirmed that he sat on his hands. But the award for the biggest load of horseshit has to go to Delegate Ware. Here is what Jenks has to say about Ware:

R. Lee Ware Jr., R-Powhatan: By e-mail, a staff member wrote, “Delegate Ware had to leave before the final votes–after 1:00 a.m.–so he would be in a semblance of mind for his teaching duties at 7:30 the same morning.”

This is a bald-faced lie. Let’s look at his votes around 1:12 AM:

1:11:45—yea
1:12:10—yea
1:12:33—yea
1:12:56—no vote
1:13:19—yea
1:13:40—yea
1:14:01—yea

Del. Ware just kept right on voting through the entire block. He voted in all of them. Either his staff member is misinformed, or Ware is already attempting to dodge his own record.

Let’s revisit our math. It would have taken 51 votes for Tracy to have been confirmed. He got 33. There were ten abstentions and eight guys sitting on their hands, pretending they weren’t in the chamber. That’s…51 votes. Ain’t that the damnedest coincidence?

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.

Monday night, my wife and I stayed up late to watch live video of the House debate the nomination of Tracy Thorne-Begland to a judgeship. My wife and Tracy went through the Sorensen Political Leaders Program together. We know Tracy, and we know him to be a stellar human being. Watching his nomination fall in a 33-31 vote purely because he’s gay was embarrassing. Yet again, Virginia will be the laughingstock of the nation.

There’s one aspect of the vote that I want to call attention to. There are the 33 delegates who voted for Tracy. Great. There are the 31 delegates who voted against him. So the hood is off—they’re bigots, but they’re willing to own up to being bigots. Decades ago, these same legislators would have voted to prohibit interracial marriage, for Jim Crow, for slavery, for secession. But then there are the ten abstentions. Delegates who were there, in the room, who chose to abstain rather than vote yes or no. Those are Anne B. Crockett-Stark (R-Wythe), Riley E. Ingram (R-Hopewell), R. Steven Landes (R-Augusta) Israel D. O’Quinn (R-Bristol), Lacey E. Putney (I-Bedford), Larry N. Rush (R-Montgomery) Edward T. Scott (R-Madison), Beverly J. Sherwood (R-Frederick), and Chris Stolle (R-Virginia Beach).

(There were also 26 delegates who didn’t vote, but the unusual hour of the vote and, indeed, the very unusual time of year for this reconvened session surely led to a high rate of absenteeism, so I’m giving them the benefit of the doubt until I can find out for sure who was present.)

These ten delegates should be a special kind of shamed. Two votes could have made the difference here, three certainly would have. All ten of these delegates witnessed an injustice, they knew it was wrong, and they did nothing. They could have stopped it. I’ll repeat that: They could have stopped it. But they didn’t. They chose not to. All of them would do well to consider the words of John J. Chapman’s 1900 commencement address to the graduating class of Hobart College, a speech so important to me that I’ve carried it in my wallet for well over a decade. This is the concluding paragraph:

I have seen ten years of young men who rush out into the world with their messages, and when they find how deaf the world is, they think they must save their strength and wait. They believe that after a while they will be able to get up on some little eminence from which they can make themselves heard. “In a few years,” reasons one of them, “I shall have gained a standing, and then I shall use my powers for good.” Next year comes and with it a strange discovery. The man has lost his horizon of thought, his ambition has evaporated; he has nothing to say. I give you this one rule of conduct. Do what you will, but speak out always. Be shunned, be hated, be ridiculed, be scared, be in doubt, but don’t be gagged. The time of trial is always. Now is the appointed time.

These ten legislators failed their trial. They failed Tracy Thorne-Begland. They failed Virginia.

Remember in 2009, when 5CD congressional candidate Feda Kidd Morton accused the State Board of Elections of committing election fraud to get Virgil Goode tossed out of office? Well, the SBE is teaching the former Fluvanna Republican Party chair a thing or two about election fraud: Morton has been arrested and charged with election fraud, Carlos Santos writes. She’s charged with making a false statement on an election form, a class 5 felony under § 24.2-1016. August 11 is listed as the date of the offense. According to The Hook‘s Lisa Provence, Morton certified that she’d witnessed people signing a petition that she had not actually witnessed. Next up is a preliminary hearing, in a month’s time.

Republicans are so desperate to prove that election fraud is a problem that they’re committing it themselves. Way to take one for the team, Feda!