Rufus Ayers. So far, he's the only candidate to defeat a sitting attorney general in Virginia, back in 1885. Courtesy of Google Books.

Attorney General Mark Herring wants Virginians to do something they haven’t done since 1945, when the Dodgers were still in Brooklyn, the baseball Browns were still in St. Louis and the No. 1 hitmakers on the Billboard charts were the Andrews Sisters.

He wants Virginians to elect an attorney general to a third term.

Herring is already in historic territory in one way because most modern attorneys general in Virginia have only served one term – often less, because it used to be the custom for an attorney general to resign if he planned to run for governor.

Herring joined Mary Sue Terry (elected 1985, re-elected 1989) and Andrew Miller (elected 1969, re-elected 1973) as the only modern attorneys general to seek and win a second term. (I’m dating the modern era from 1969 when Linwood Holton broke down the one-party system in Virginia.)

That means the only Virginia voters now alive who have ever had the experience of deciding whether to give an attorney general a third term are 97 or older.

Mark Herring.

Whether Virginians want Herring for four more years or Republican Jason Miyares is a choice you’ll have to make. What I can do is offer some historical context.

Jason Miyares

1. No Virginia attorney general has lost re-election since Francis Blair was defeated in 1885. That was a landmark year in Virginia history, one that doesn’t get enough attention for how it shaped the century to come. We tend to broadbrush the Reconstruction years as one long descent into the Jim Crow years, but that’s not so. There was a brief window in the 1880s when Virginia took a different path. In 1881, a party called the Readjusters came to power, a forerunner of the Republican Party of that era except the political poles were reversed from what they are today. The Readjusters were an alliance of small farmers, particularly west of the Blue Ridge, and newly enfranchised Black voters. They wanted things the state’s conservative establishment did not – public schools, for instance – and they were quite fine “readjusting” the state’s debt to afford them, something that was anathema to the conservative establishment to whom a lot of that debt was owed. In 1881, the Readjusters came to power and ushered in a brief progressive era for its day. They appointed Blacks to low-level public office, they funded Black schools, they passed other civil rights legislation that was too much for many white voters. In 1885, a conservative backlash swept the Readjusters out of office, installing instead conservative Democrats who would rule the state until Holton’s election in 1969. That’s how Blair came to lose to Rufus Ayers, who was born in Bedford County and later lived in Scott and Wise counties. If Herring loses to Miyares, it will be the result of another conservative backlash to progressive politics – just of a very different character today than then.

2. Since Virginia started electing attorneys general in 1851, only two have served three or more terms. John Saunders of King and Queen County was elected in 1917, then re-elected in 1921, 1925, 1929 and 1933 – five terms in all! To match him, Herring would have to win this year and then again in 2025 and 2029. Saunders died in office in 1934 and was replaced by Abram Penn Staples of Roanoke, who went on to be elected in his own right in 1937, 1941 and 1945. That’s three terms plus, so even if Herring wins this year, he won’t quite equal Staples. Midway through his third term, Staples resigned to become a member of the Virginia Supreme Court. Lindsay Almond, also of Roanoke, gets credit for serving a little more than two terms. He was appointed to the post in 1948 when the incumbent died (Harvey Apperson of Salem, who had succeeded Staples), then was elected in his own right in 1949 and 1953.

3. If Herring wins a third term, he will be one of the longest-serving attorneys general in the country, but by no means the longest. Kansas Attorney General Derek Schmidt (a Republican) is well into his third term already; he was elected in 2010, then re-elected in 2014 and 2018. So is South Carolina Attorney General Alan Wilson (another Republican), who won the same terms. West Virginia Attorney General Patrick Morrisey (Republican) is another three-termer, winning in 2012, 2016 and 2020. Oregon Attorney General Ellen Rosenblum (a Democrat) is into three terms-plus territory. She was appointed attorney general in 2012 to fill a vacancy, won election later that year and then was re-elected in 2016 and 2020. 

The attorneys general in Idaho (Lawrence Wasden, a Republican) and North Dakota (Wayne Stenehjem, a Republican) are both in their fifth terms. Wasden was first elected in 2002; Stenehjm in 2000. By Virginia standards, that would be as if Mark Earley or Jerry Kilgore were still attorney general. The nation’s longest-serving attorney general, though, is Iowa’s Tom Miller, a Democrat. He’s now in his 10th term, although they weren’t all consecutive. He was first elected in 1978 and served three terms. In the early ’90s, Miller ran for governor instead but failed to win the Democratic nomination. He came back four years later, ran for attorney general and has won every year since. Some elections weren’t even close. Although Iowa now trends Republican, Iowa Republicans didn’t even nominate a candidate to run against him in the last cycle in 2018. (Herring wishes he was so lucky!) To put this in Virginia terms, it’s as if Marshall Coleman were still our attorney general. Miller’s 38 years as attorney general are a national record, although some record-keepers add an asterisk since they haven’t been consecutive. The record for consecutive years as an attorney general belongs to Democrat Frank Kelley, who spent 37 years as Michigan’s attorney general from 1961 to 1999, winning 10 terms. For Herring to equal either Miller or Kelley, he’d have to win this year, plus 2025, 2029, 2033, 2037, 2041, 2045 and 2049. Now let’s flip things around:

4. If Miyares wins, this son of a Cuban refugee would be Virginia’s first Latino attorney general. Nationally, the ranks of attorneys general tend to be more diverse than those of governor. There are currently nine women who serve as governor; 10 attorneys general are women. There are presently no Black governors, but there are five Black attorneys general. There are also two Asian attorneys general and two Latinos. There’s also one Muslim (Keith Ellison of Minnesota). Those with a long political memory may recall that when Ellison was in Congress, then-Rep. Virgil Goode, R-Franklin County, objected to him being sworn in on a Quran. Another history note: That copy of the Muslim holy book was once owned by Thomas Jefferson. Completely unrelated but still fun trivia: The attorney general in Washington state is an internationally rated chess master.

5.Virginia has term limits for a governor, but not attorney general. That’s not usual; only 17 states have term limits for their attorney general. 

Now that we’ve established all this context, a question: Why do we elect an attorney general? We don’t elect the U.S. Attorney General; he or she is a presidential appointee (subject to Senate confirmation). I don’t have a good answer for that. In Virginia, the attorney general was chosen by the General Assembly up until 1851, when we switched to an elected attorney general. That’s certainly the most popular method: 43 states elect their attorney general. That leaves seven who don’t. In five states – Alaska, Hawaii, New Hampshire, New Jersey and Wyoming – the attorney general is appointed by the governor, much like at the federal level. In Maine, the state legislature picks the attorney general. In Tennessee, the state Supreme Court does. 

Is there an argument for not electing an attorney general? We might want to ask the governor-elect on Nov. 4. Four times in Virginia history – following the elections of 1969, 1973, 2001 and 2005 – we’ve had a governor and attorney general from different parties, which has led to some interesting politics, to say the least. If we somehow wind up with either McAuliffe and Miyares or Youngkin and Herring, that would be the fifth such combination.

Dwayne Yancey

Yancey is editor of Cardinal News. His opinions are his own. You can reach him at dwayne@cardinalnews.org.