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Miscellaneous and Personal Stuff I Must Share
1

In case nobody has been following, there has been some (I think) playful suggestions that Frederick County, VA (containing Winchester) should become part of the State of West Virginia. Now, I know this isn’t happening, but it is a fun discussion about the legality of it.

In short, the 1863 Constitution of West Virginia, approved by Congress and by the Restored Government of Virginia consented to the following language:

Subsequently, the counties of Pendleton, Hardy, Hampshire, and Morgan did so vote in favor of joining West Virginia. In addition Berkeley and Jefferson held elections in which they voted to join West Virginia.

However Frederick County never held an election as at the time it was occupied by Confederate troops and the war raged in that county until the end of hostilities in 1865. To date, it has never held such an election.

In 1872, West Virginia drafted a new Constitution which listed all of the previous counties that had joined, but left out the provision about Frederick County.

So suppose Frederick County held an election and voted to become part of WV, and further WV amended its Constitution to allow it.

Would the prior act of the Restored Government of Virginia and Congress be enough to effectuate the transfer? Could the current government of Virginia “rescind” its “consent” to the transfer?

2

Further, what seems odd to me is that the language calls for “district[s] composed of the counties.”

I read that as two separate elections, the first for Pendleton, Hardy, Hampshire, and Morgan voting as a “district” meaning that if a majority of the whole of the four counties vote in favor, then all four come in. Same with Berkeley, Jefferson, and Frederick.

Again, just the way I read it, it wouldn’t matter if, say, only a minority in Hardy voted in favor, if the district as a whole voted, then Hardy would be forced to come along.

Likewise Frederick should have tagged along with Berkeley and Jefferson. But that’s not what happened and apparently now how the framers at the time thought.

3

Well it seems somebody is following the case. Washington Examiner published a story on it on January 21 and another story on it on January 28. So I guess that qualifies as “following” the story.

DuckDuckGo finds other stories about it too.

So I guess, whether playfully or otherwise, the story is getting some attention. (ETA: Mostly on right-wing media of course, e.g., gateway pundit et al.)

Civil War II: Gun control could push Virginia counties to join West Virginia January 21, 2020.

‘Join us,’ West Virginia governor urges pro-gun, pro-Trump Virginia counties January 28, 2020.

4

I don’t think it’s going to fly. The Constitution only requires that the two states involved need to agree to a border change; it doesn’t require the consent of any counties or towns or individuals.

So if Virginia wanted to make its consent contingent on a vote from Frederick County, it could do so. But - and this is the important point - if Virginia wanted to agree to a border change without Frederick County’s agreement or even input, it was also free to due so.

In order to invalidate the border, you would have to show that Virginia and West Virginia didn’t agree to it not that Frederick County didn’t agree to it. And the governments of the two states have recognized the border.

5

I am so far from an expert on this, that I hope someone smarter can come along and fix the errors in what I’m about to say. But from my standpoint, this would be advantageous to Republicans on a personal level, but disadvantageous on a national level. Virginia Republicans wanting to live in a place with laxer gun laws, for example, would appreciate becoming part of a state that has laxer gun laws. Ditto for all the other examples listed in the article.

But in terms of national politics, Virginia is a swing state. If the rural, Republican counties became part of West Virginia, then it’s likely Virginia would become firmly Democratic – Democratic senators, Democratic governor, and votes going to the Democratic candidate for president. (Well, this depends on which scenario we’re discussing. If Frederick County were the only one to switch over, then it may not be populated enough to make a difference. But the article linked to in the OP also includes the Shenandoah and Blue Ridge Mountain areas.) So, as I see it, rural Virginia counties becoming part of West Virginia would give Democrats a competitive advantage nationally. Right?

Like I said at the beginning of this post, I am so not an expert on this. But my ex-husband lived in Maryland and worked in Virginia, and I vaguely remember how if you lived in one state but had, say, your car registered in another state, or your gun, or maybe you had two residences but played with which one was your primary residence, you could live in one state but abide by the laws of a different state. And that might be more appealing than actually changing the state that you live in.

6

It’s an interesting question, but it seems to me that Virginia could just say that it agreed to the 1863 constitution but not the (hypothetical) amendment to the 1872 version, so that would be that.

7

But Virginia didn’t just agree to the 1863 constitution for its (the constitution’s) own sake. It specifically agreed that if Frederick County voted to join West Virginia, then Frederick County had Virginia’s consent to do so.

This argument is much like the argument about rescinding a ratification of a constitutional amendment. Is the consent open for all time, or may Virginia revoke its consent?

I put “consent” in those quote marks in the OP and now because it really is a legal fiction to say that the Restored Government of Virginia in the Civil War was really Virginia. But if we dispute that, then we must dispute the existence of the entire State of West Virginia.

Is it important that Frederick County never voted no? Is a no vote always and forever binding? And what about the “district” language? Should Frederick County have been part of West Virginia at the same time Berkeley and Jefferson joined? Does 150 years of non-recognition matter?

I think the answer to the last three questions are “yes” but not sure about the others.

8

Agreed, but is it important that they did not repudiate the prior understanding that Frederick County could nonetheless vote to join? All the 1872 Constitution said was (paraphrasing) “this is the State of West Virginia” not that it could never be enlarged by prior agreements.