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?

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.

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.