Elections: City asks judge who deemed election system illegal to allow special election

Ed. — From the Sunday, July 18, print edition.


VIRGINIA BEACH — The sudden resignation of Virginia Beach City Councilmember Jessica Abbott this month comes at a delicate time for a city embroiled in a federal lawsuit in which a judge in March determined the election system denies minorities the right to fairly participate in local elections.

That suit is now in a remedial phase in which the court is expected to determine a new system after considering recommendations from both sides that were submitted on Thursday, July 1. Concurrently, the city had been appealing the ruling that found its voting system illegal, but the appeals court on Monday, July 12, entered an order putting on hold the city’s effort to speed up its appeal until after the district judge issues a final order in the remedial process. 

Now the city is also asking that judge to permit a special election under a system he found to be in violation of the U.S. Voting Rights Act. No decision on that request had been filed as this edition of The Independent News went to press Thursday, July 15. By statute, the city requests a special election from the state court, but it needs relief from the federal court for an election to occur.

“It’s a very unique situation,” City Attorney Mark Stiles said on Thursday, July 15, “and we’re not sure how this is going to play out.”

For now, the City Council will try to fill the Kempsville District seat Abbott held until her Friday, July 2, resignation with a temporary appointment. That process is underway, and the city is seeking applicants who are registered voters and live within the boundarxies of the district. 

Abbott left due to a health concern, and her peers learned of her plan to resign shortly before it happened. She was only reelected this past year, and she resigned near the start of a four-year term. A temporary appointee cannot serve past the next election, according to court filings by the city. 

Officials this past week said it is possible an appointee could to serve longer due to uncertainty about the special election, but it is not clear whether that is allowable.

A main issue discussed in court filings is whether voters can select a replacement for Abbott under the system U.S. District Judge Raymond A. Jackson, the judge in the civil suit, said violates the U.S. Voting Rights Act. 

Virginia Beach’s lawyers filed a proposed order with that court. If signed, it would grant a stay of the injunction preventing the city from using the existing system. There is not time to implement a new system in time for this coming election, the city argued.

“The City Council must now appoint an interim, temporary successor to fill the seat Ms. Abbott vacated, the Kempsville residency district,” the city said in a motion on Wednesday, July 7. “The city must then hold a special election ‘on the date of the next general election in November,’ Nov. 2, 2021, to fill the remainder of Ms. Abbott’s unexpired term … The temporary successor, by law, cannot remain in office past that date.”

Virginia Beach Voter Registration & Elections Director Donna Patterson in a statement filed with the court supported the city’s request and noted requirements and challenges of holding a special election this year. 

Issues include the timeline to get the special election on ballots and let candidates meet filing requirements so they qualify to run for the seat.

The city at-large voting system has been challenged in court and by recent changes to state law because of an unusual feature in which voters who live outside a district help select the representative for that district. For example, voters in Pungo could help select the representative of the Kempsville District.

Ballots must be printed soon, Patterson noted, and candidates cannot qualify without an approved map of the district. 

There has been no indication that a special election would be held under a new system that has not been determined by the court. The plaintiffs seem supportive of filling the district seat, though not of some logic in arguments filed by Virginia Beach.

The plaintiffs on Thursday, July 8, filed a response that said they do not oppose modifying the court’s prohibition on using the system to hold a special election. 

In a letter to the appeals court, Katherine McKnight, a lawyer representing the city, wrote about the resignation and the need for a special election. 

“The city is now being irreparably harmed by the injunction, which forbids that election,” McKnight wrote.

The plaintiffs argued that “modification of the injunction is appropriate because it is likely — though not guaranteed — that the results of a special election for the Kempsville District seat will not affect the court’s imposition of a remedy” in their suit.

© 2021 Pungo Publishing Co., LLC

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