VIRGINIA BEACH — A federal appeals court on Wednesday, July 27, sided with the city of Virginia Beach’s position that a voting rights suit against the city was moot after a change to state law ended Virginia Beach’s former local elections system before a judge did so and ordered a new system into effect.
Two of three judges on the U.S. Court of Appeals, Fourth Circuit, panel agreed with the city position and vacated a decision that upended local politics this past year, marking what is likely the greatest governmental change in the city in decades. However, the panel, while vacating the decision, sent the matter back to U.S. District Court Judge Raymond A. Jackson, who originally found Virginia Beach’s former at-large voting system violated the U.S. Voting Rights Act and diluted the voting power of minority citizens.
The plaintiffs in the matter, Latasha Holloway and Georgia Allen, may have additional arguments and amend their complaint, the appeals court found, and they could pursue that with the district court. Holloway and Allen are being represented in the federal suit by the nonprofit Campaign Legal Center.
Simone Leeper, legal counsel for redistricting for the Campaign Legal Center, said during an interview that the plaintiffs are not ruling out options at this point. However, she said the focus should be on the upcoming local elections in Virginia Beach, which will be held under a “fair” system for city voters.
“They’ll have the opportunity to participate in the elections on the same playing field as everybody else,” Leeper said.
“I think we are obviously disappointed in the fact the permanent nature of that 10-district plan has been lifted,” Leeper added. “The people of Virginia Beach have the opportunity in this next election to elect for the first time a council that reflects the people of Virginia Beach.”
Leeper said the city has the power to appeal to the Virginia General Assembly to make the 10-district system permanent. Jackson had not responded to the appeal court decision as this edition of The Independent News went to press on Thursday, Aug. 4.
The city has denied its former system was discriminatory while acknowledging it could no longer be used due to changed state law. Oral arguments in the appeal were heard in March.
Importantly for Beach citizens, there is no indication the decision will change this year’s local elections, in which candidates have already filed to run in several local races under the system ordered into existence by the federal district court. The city, while pursuing its appeal, has been working to communicate the changed voting system to its citizens.
“At this point, the city is actively working to implement the 10-1 system ordered by the district court,” Deputy City Attorney Chris Boynton said during an interview shortly after the appeals court announced its decision, “and my expectation is the election will continue under that system.”
During an interview, Mayor Bobby Dyer said he was gratified by what he sees as vindication of the city decision to fight the district court ruling.
“I never felt we had a system that disenfranchised or prevented anybody from serving on the council,” he said, noting the current council is diverse. “But we’re disappointed that it took so long for the decision to come in.”
Dyer said the city is complying with the 10-district system for the upcoming election. He said there will be a new City Council in January, and it was important for the city to see how the new local election system was working.
Next steps, he said, would involve engaging the public.
“There’s definitely going to be changes in January,” speaking of the makeup of the council. “I think the prudent thing to do is see how this goes and have a discussion that definitely includes significant public participation.”
Dyer stressed that this year’s election is proceeding under the new system.
“All of the candidates have been certified,” he said. “It’s impossible to make any substantial changes, at this point. Let’s go forward and make the best of the situation.”
Jackson in December ordered the new 10-district voting system into effect. Early voting for this year’s elections begins next month, though it is now uncertain whether 2024 elections will be held under the same system. What seems apparent is that the former at-large system of citywide and seven district seats cannot be restored under state law.
Before the new 10-district system went into effect, a bill introduced by state Del. Kelly Fowler, D-Virginia Beach, essentially ended the city’s former system because people living outside of a voting district could no longer help determine representation for the district, a controversial element of the old system.
The Fowler bill was approved by the General Assembly and signed into law. This change was a key to the appeals court’s reasoning in its reversal of Jackson’s ruling.
Fourth Circuit Judge Pamela Harris wrote, “Before the district court ruled on that claim … Virginia’s General Assembly passed a law eliminating at-large voting for most of the seats on the City Council.” The appeals court majority found Jackson “erred” in saying the claim in the plaintiff’s case was not moot, and it vacated the decision.
“The General Assembly’s action left the plaintiffs challenging — and the district court assessing — an electoral system that no longer governs elections in Virginia Beach,” Harris wrote in the majority opinion.
Harris added, “In sum, (the General Assembly bill) prevented the city from conducting any future City Council elections under the electoral system that the plaintiffs challenged, and other aspects of state and local law precluded the city from returning unilaterally to its old ways.”
In a dissenting opinion, Fourth Circuit Chief Judge Roger Gregory wrote that he disagreed that the change to state law made the case moot because some aspects – but not all – of the city’s former elections system had invalidated.
He wrote that the Fowler bill does not eliminate at-large voting for some seats under the former system “or determine the boundaries of its de facto seven single-member districts.” He said the plaintiffs had standing to pursue the suit and affirmed the district court decision.
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