VIRGINIA BEACH— A judge in March dismissed a federal lawsuit filed by two Virginia Beach residents who had accused the City Council of illegally adopting a new district voting system first used in 2022 City Council and School Board elections. The plaintiffs are now appealing the decision, court records show.
U.S. District Court Judge Raymond A. Jackson entered a dismissal order on Wednesday, March 20. Jackson is the same judge who oversaw another federal lawsuit that claimed the city’s former voting system was discriminatory against minority voters, a legal process that was among the events that led to changes to the city’s local voting system.
In the dismissal order last month, Jackson found plaintiffs Richard “R.K.” Kowalewitch, who has sought local office, and Donnie Edwards lacked standing to argue a series of claims in federal court.
The plaintiffs have argued the City Council should have sought a change to the City Charter prior to using the 10-district system and, among other assertions, that some elected folks shouldn’t be in office.
The City Council in August voted to adopt the 10-district system through a redistricting ordinance, but the city also has sought a charter change this year in Richmond. The 10-district system was ordered into effect in late 2021 by Jackson, who found the former city voting system violated the U.S. Voting Rights Act by denying minority voters an opportunity to select candidates of their choice. Latasha Holloway and Georgia Allen were the plaintiffs in that case, which often is called the Holloway case.
One controversial aspect of the former city local voting system was that all city residents helped select all members of the council and School Board, even if they lived outside residency districts. The Holloway case ultimately led to new districts designed by a court-appointed special master.
An appeals court decided Jackson’s order was moot due to changes in state law – including disallowing people who live outside a district to select its representation – but the 2022 elections were already underway, and the city proceeded using the 10-district plan because the system had been implemented and candidates were running.
In the Kowalewitch case, Jackson’s order states, “Upon review, the court finds that all of the specific election-related chalenges raised by [the] plaintiffs arise under state and local laws, not federal law, and do not provide any basis for this court to exercise federal jurisdiction over this action.”
Jackson also wrote that the plaintiffs have not shown their standing to pursue their claims in federal court.
This past week, Kowalewitch said the plaintiffs are appealing the dismissal in their lawsuit. They filed to do so on Tuesday, April 8.
Charter change requires state approval.
“Either you followed the law or you didn’t,” he said during an interview this past week. “That’s all we asked, and they didn’t do it. … How do you run an election with a system that doesn’t exist in law?”
Deputy City Attorney Chris Boynton on Thursday, April 11, said, “We think it has zero legal merit, and we are preparing to defend the appeal.”
Bills that would have changed the City Charter to reflect the 10-district system passed this year in both chambers of the Virginia General Assembly, but Gov. Glenn Youngkin, a Republican, amended them so they would not take effect unless reenacted by state lawmakers next year.
Those changes were returned to the General Assembly, which reconvenes again in Richmond later this month.
In March, the Youngkin administration in a statement said the amendment would allow for the consideration of litigation involving the city, though this did not appear to refer to the Kowalewitch suit.
Another lawsuit filed against the city – this one in state court – remains outstanding. In it, several citizens, including former City Councilmember Linwood Branch, have challenged the new 10-district system and argued local elections should reflect the seven residency districts as described in the charter and four citywide, or at-large, seats.
The Branch suit factored into some discussion about the bills in the General Assembly and appears to be the suit referenced in Youngkin’s actions on the charter change bills. The statement released by his office said the reenactment clause allowed time to reconsider the legislation pending a “potential resolution of the ongoing lawsuit.”
State Del. Kelly Fowler, a Virginia Beach Democrat who carried the House of Delegates bill, criticized the governor’s actions in a statement to The Independent News.
“Charter changes are extremely basic, as they are a request by a locality that follows a legal process,” she wrote, “so why does Gov. Youngkin want to kill a Virginia Beach charter change?”
Fowler wondered whether Youngkin’s actions were meant to help the plaintiffs, noting the suit was filed in court in Virginia Beach after bills seeking the charter change already had been introduced in the General Assembly.
In the Circuit Court matter, judges in Virginia Beach recused themselves, but the Virginia Supreme Court assigned retired Judge Charles E. Poston to preside over the case. A hearing is scheduled for May.
In other recent filings in the Branch case, one of the plaintiffs in the Circuit Court lawsuit, Dee Oliver, a former member of the Planning Commission and candidate for local office, removed herself as one of the plaintiffs. Additionally, the plaintiffs have asked the court to dismiss Virginia Beach Registrar Christine Lewis from being a party to the suit.