Elections: ‘Path forward’ for Virginia Beach is to adopt court-imposed local voting system used in 2022

Ed. — From the Sunday, July 23, print edition.

COURTHOUSE — The 10-1 district system used for the first time in local elections this past year meets state law and the expectations of the federal court which ordered it and is watching over what Virginia Beach does next – and a study commissioned by the city shows it has public support.

That’s why the city’s lawyers this past week recommended, essentially, that it is time for the Virginia Beach City Council to read the room. The recommendation is to put the system in place permanently, and members of the council may start doing so in the coming weeks to ensure the system is operational before the 2024 local elections.

Deputy City Attorney Chris Boynton briefed the City Council on Tuesday, July 18, and offered a “path forward” that, should it be followed, would permanently enact the 10-1 system by seeking a change to the City Charter or a general law change through the state legislature. 

Virginia Beach could avoid further litigation after years of controversy about how it selects members of its City Council and School Board, including a judge’s finding that the city’s former local voting system discriminated against minority citizens.

If the council takes the staff’s advice, it could move in August to adopt a redistricting ordinance and later seek a City Charter or a general law change from the General Assembly. These steps would come after holding public hearings, according to the timeline laid out in the presentation.

“Between the federal court posture and Virginia state law, City Council has been given no path forward other than [the] 10-1 system with three [minority opportunity districts],” says the presentation.

It appears increasingly likely the City Council is poised to pursue the system used in 2022. Mayor Bobby Dyer says the city has limited options. He pushed for a recent public engagement study about local voting that found citizens support the 10-1 system, in which the mayor is elected citywide and council members are elected from 10 districts only by the residents of each respective district. 

The mayor said he will not seek an advisory referendum and the city will work toward formally implementing the 10-1 system. Dyer said the position of U.S. District Court Judge Raymond A. Jackson, who is still overseeing a suit that changed the city’s voting system, is clear. 

“Judge Jackson put us into a total no win situation,” said Dyer, reached by phone while he was in Germany on city business this past week. “There’s just not a path.”

Dyer did not attend the Tuesday meeting because he was traveling, but, by phone, he said Virginia Beach needs to play the cards it has been dealt.

“We have to respect the process,” Dyer said, “and we have to move forward to come together as a community.”

In Virginia Beach, several members of the council – though not all – have said they either support implementing the system used this past year or have heard both the legal advice and the support for the 10-district system expressed in a survey, the results of which were shared this past month.

“I think we recognize the importance of taking the combination of public feedback and the recommendations of legal staff and outside counsel very seriously,” said City Councilmember Michael Berlucchi, who represents District 3, during an interview before the meeting on Tuesday, July 18.

“The court has ruled,” City Councilmember Sabrina Wooten, who represents District 7, said during the meeting that day. “The judge has made it plain. We have to select a path forward. … Let’s move forward.”

That system was challenged in federal court by plaintiffs Latasha Holloway and Georgia Allen, and Jackson eventually sided with the plaintiffs, finding the city’s system to be discriminatory by denying Black, Hispanic and Asian-American voters the right to elect candidates of their choice under the U.S. Voting Rights Act.

In the meantime, changes to state law, including the adoption of the Virginia Voting Rights Act, meant the former city voting system was no longer legal as it had been defined and practiced in Virginia Beach. Another measure introduced by state Del. Kelly Fowler, a Virginia Beach Democrat, said only residents of a district could pick their own representatives. That became law, too, in 2021.

That year, Jackson appointed a special master, who designed the 10-1 system to include new districts, sometimes called wards, including three minority opportunity districts meant to give minority voters a greater chance of selecting candidates of their choice and address concerns of the plaintiffs that minority voters had their vote diluted.

That system was ordered into effect by the court and used in the 2022 elections, eventually resulting in the most diverse council in the history of modern Virginia Beach.

The city had appealed the decision, with an appeals court prior to the 2022 elections finding that the changes to state law meant the problematic former system was dead, meaning the complaint was moot — but, importantly, not that underlying issues in the suit were overturned. 

The new system could not be changed before the 2022 elections, and the city went forward using it.

The appeals court remanded the case back to Jackson, noting that the plaintiffs may have new claims depending upon what Virginia Beach decided to do going forward.

 “The court pointedly did not reverse based upon the quote-unquote merits of the case, but, rather, it reversed on the issue of mootness,” Boynton said during the briefing.

Boynton noted that the recent public input process, which found overwhelming support for the new system, was couched in terms of both seeking feedback while acknowledging the constraints the city faces in adopting a local voting system.

“But, as we sit here today,” Boynton said, “the barriers to any system other than 10-1 with the three minority opportunity districts that you used for your 2022 elections, are strong, if not insurmountable.”

“We have communicated to [the City Council] that the court and the plaintiffs have not given us any choice in the matter,” Boynton said during an interview with The Independent News.

The presentation also summarizes a status conference for the Holloway case, as the federal court matter overseen by Jackson is known. It was held in May.

The judge, according to the city summary, was frustrated with the “pace of the city’s consideration of [the] election system issue” and said only the 10-1 system overcomes issues with the U.S. Voting Rights Act. 

Additionally, according to the city, the court said the city “would not have an election in 2024” if it adopted or pursued something else.

Representatives for the plaintiffs could file amended claims if the city adopts another system and even if there is any referendum attempt, according to the city.

The judge’s words during the Thursday, May 24, conference were direct, according to a transcript obtained from the city through a Freedom of Information Act request.

Boynton was among those representing the city. The plaintiffs were represented by attorneys for the Campaign Legal Center, a nonprofit organization. 

Jackson quickly noted that the underlying case remains alive, despite the appeals decision, and he asked Boynton what the city plans to do and on what timetable.

“I understand that the City Council voted six to five to go out and let the public weigh in on what kind of electoral system it wanted,” Jackson said. “But you, as a lawyer, and the plaintiff both know, even if the citizens decided they wanted segregation, what they will get is what is permissible under the Voting Rights Act. The court doesn’t understand what the City Council is doing. It seems like a PR stunt to the court.”

Boynton said the City Council understands a 10-1 system with three minority opportunity districts is legally viable.

“So that is the legal path of least resistance, so to speak, and I have a feeling there’s a decent chance that that’s what results from this process,” Boynton said. “But I think they wanted to go through the process so the public felt invested in it.”

He discussed a timeline to enact a system before the 2024 elections, including should the council need a referendum – though Boynton noted a referendum is not necessary.

“The City Council is dragging it out,” Jackson said. “If you need a referendum, that’s something they have in there, and, I’m telling you, you may not have anything for an election in November 2024 because you are cutting it real close.

“If the plaintiffs decide they want to challenge it and you’re back in this court again, there’s not going to be an election based on what you have or whatever you come up with in November 2024,” the judge added, “because the city is running around without taking responsibility for anything, seeking public input needlessly – it’s a PR move, from the court’s viewpoint – and then talking about they need a referendum, if necessary, to get this thing off the docket.”

Simone Leeper of the Campaign Legal Center said the plaintiffs hope the newly elected City Council, including members selected through the new system, would move forward and adopt it permanently because of concerns about the votes of minority citizens being diluted.

“We are concerned, to say the least,” Leeper said, “of the concept of dragging out and putting a referendum on the ballot in an electorate that has been shown to be racially polarized … ”

Jackson urged Boynton be direct with the City Council.

“You as legal counsel cannot make them do anything, but you certainly can advise them,” Jackson said, according to the transcript. 

“Virginia Beach for years has been engaged in discrimination against minority voters,” he continued. “Now, we’ve brought this to the city, and they’re still messing around with the issue. They need to get in there, take care of the issue and stop finding ways to delay things – first the public weigh-in, then a referendum. It’s effectively over.”

Boynton agreed to relay the court’s concerns to the City Council. He did so publicly on Tuesday, July 18.

“The court is clearly watching everything you do,” he told the City Council at City Hall.

“I think the very essence of voting rights is the right of our citizens to vote in elections,” Henley said. “They have the right to elect their representatives and the right to vote on issues of importance to the community. To circumvent the right of the people to have elections, in my opinion, is the very height of a violation of voting rights.”

Henley said city government has depended upon hearing from people through referendums, dating back to the decision to merge Virginia Beach and Princess Anne County. Additionally, past referendums have dealt with voting systems, and the council was poised to seek a referendum about local voting prior to the pandemic.

She said the General Assembly, without public discussion, changed the city’s voting system in 2021 and that the council has not been delaying by seeking public input.

City Councilmember Jennifer Rouse, who represents District 10, responded that such discussion of history and the urban-rural divide involves separate issues. 

“It’s a different divide today,” Rouse said during the meeting, “and I don’t know how that history speaks to the current issue of two plaintiffs who allege the city has a history of racial discrimination in its voting practices. And the evidence of that is the lack of racial diversity among elected officials.

“The concern for these plaintiffs,” Rouse continued, “as outlined in the presentation, is that if we were to go to a referendum. the same population that has created this uneven outcome in racial representation on City Council would be the same population to give input via referendum, and that would be another form of discrimination.

“It’s uncomfortable, but the history of Virginia Beach is not a history that has been welcoming … to Black people,” she said. “I understand a rural-urban divide, but it’s a different issue today.”

People feel the city has moved slowly to make room for people from different economic and racial backgrounds to participate in public life, she said.

“With this new district system, we now have the most racially diverse, generationally diverse council in the city’s history,” Rouse said.

She said the Holloway plaintiffs are two people who reflect a community that has been unheard, and there is a diverse range of people across political identities who support the new form of representation for reasons such as making running for local office more affordable and obtainable.

City Councilmember Joash Schulman, who represents District 9, said it was important to understand the constraints the city faces. He said he is glad the city surveyed residents because it gave the city “a definitive answer.”

Most supported the 10-1 system, and a wide range of people supported keeping it, he noted.

A referendum might hurt, not help.

“If we were to ask a question and were delivered an answer by the public that further complicated that issue, I think that would put us in a pretty difficult position in terms of what to do going forward,” Schulman said.

Ed. – Previous news coverage is online at this link. Information about the voting district is online from the city via virginiabeach.gov, and additional information about the public engagement process can be found online here.