How a 2020 bill might have prevented election drama in a Va. GOP Senate race

On March 1, a local Republican official notified state officials the party had decided on a government-run primary to pick its nominee in a contested race for a Senate seat in Southside Virginia.

About a week later, Republican Party of Virginia Chairman Rich Anderson told the state the notice from the lower-ranking official, Suffolk Republican Dawn Jones, was “inaccurate and should be disregarded,” putting the state elections agency in the position of trying to referee a convoluted power struggle within the GOP.

“We understand how frustrating our internal party problem must be for you during this hectic period,” Anderson wrote to Elections Commissioner Susan Beals in correspondence obtained via the Virginia Freedom of Information Act. “We take our responsibilities to nominate candidates and comply with election laws seriously and share your frustration at the conduct of our own subordinate officials.”

The confusion over whether Republican voters would be picking a nominee by convention or a primary ultimately led to a lawsuit and a judge deciding the state had overstepped its authority by siding with Anderson and rejecting the primary notice. The judge’s order means the Republican contest in the 17th Senate District, which pits Del. Emily Brewer, R-Isle of Wight, against former NASCAR driver Hermie Sadler, will be decided in a June 20 primary instead of the convention some were expecting.

Though the recent drama appears settled for now, it wasn’t the first time state policymakers have struggled to define the proper lines of authority for deciding how elections should be run. A bill the General Assembly rejected in 2020 might have saved everyone the headache by streamlining how the state elections department interacts with political parties.

Because many legislative districts aren’t politically competitive, nominating contests are often the main chance many Virginia voters have to weigh in on who should represent them in Richmond. Infighting over the rules for those contests is a recurring issue for both parties, but it’s been much more pronounced among Republicans given the GOP’s stronger inclination toward conventions and other non-primary methods of choosing candidates. Gov. Glenn Youngkin won the GOP’s nomination for governor at a 2021 party convention preceded by major disputes within his party about rules and processes.

In a similar Republican-versus-Republican dispute in 2019, former GOP Del. Chris Peace and current Del. Scott Wyatt, R-Hanover, clashed in a messy factional dispute that led to the party holding two different nominating elections. Peace won one, and Wyatt won the other, putting the state in the position of having to defer to the state party to sort out the mess and name one candidate to move on to the general election ballot. (Wyatt prevailed and still holds the seat.)

In one of several paperwork problems that same year involving Del. Nick Freitas, R-Culpeper, a local GOP official claimed he had sent a key document declaring Freitas the nominee to the email address of someone who no longer worked at the elections agency. Freitas went on to win a write-in campaign that year. During the same cycle, two other candidates — Del. Terry Kilgore, R-Scott, and Del. Clint Jenkins, D-Suffolk — also had paperwork trouble after local party officials failed to submit forms officially declaring them nominees.

After the confusion of 2019, the elections department drafted a bill meant to avoid similar issues going forward.

Under the proposed legislation, state officials would no longer have had to wrangle official election paperwork from hundreds of local party officials with varying levels of administrative competence. Instead, the bill would have given the chairs of each state political party the responsibility to tell the state what nominating methods it would be using where and who its winning nominees were.

“The intent of the bill was to try to centralize that and put the responsibility on parties to try to organize themselves internally and give the state one central point of contact,” said Del. Sally Hudson, D-Charlottesville, who sponsored the unsuccessful 2020 legislation. “I think that the people who oppose the bill like the idea that the person who’s responsible for getting their paperwork in is a person who lives nearby.”

During hearings on the proposal three years ago, former Chief Deputy Elections Commissioner Jessica Bowman told lawmakers the idea was that the Republican Party of Virginia would give the agency “one big sheet of everyone,” freeing state officials from “chasing down” hundreds of local party officials to get the information they needed.

Some lawmakers said they were uncomfortable with giving state party chairs more authority over their local party officials back home.

“That’s way too much power, way too much mischief that can happen in our electoral lives,” said Sen. John Cosgrove, R-Chesapeake.

The Democratic-controlled House passed the 2020 bill by a 56-44 vote, but it was defeated in the Senate after it was amended to effectively force state political parties to do open primaries by default. The Senate amendment would have allowed party-run processes, but the party would have had to pick one method across the board, meaning no conventions unless the state party was willing to hold conventions everywhere.

“I think there’s a lot more opportunity for mischief locally,” Sen. Scott Surovell, D-Fairfax, said as he pressed for the amendment to reduce the role of local party committees in the election process.

Jones, the Suffolk Republican official who sued earlier this year over the nominating method in Senate District 17, claimed “high-ranking Republicans in the state’s executive branch” pressured the elections department to disregard the notice she sent indicating a primary had been chosen. Lawyers for the state argued the elections agency, after consulting the law and reviewing the information the RPV submitted seeking to overrule Jones, had decided the notice from Jones was invalid. In a court filing, the state suggested Jones was attempting to “usurp the power and rights plainly vested in the political party” and had claimed decision-making authority she didn’t actually have.

The office of Attorney General Jason Miyares, which lost the court fight on behalf of the elections department, refused to say whether it had advised the agency to overrule the primary notice from Jones. Miyares spokeswoman Victoria LaCivita said any advice the office “does or does not give its clients is protected by attorney client privilege.”

The state isn’t planning to appeal the ruling from Richmond Circuit Court Judge Claire G. Cardwell, who concluded existing law gives the state no power to “investigate further” whether election notices received from local party officials are valid.

“To do so would undermine the statutory wall that exists between the government and the workings of the political parties of the Commonwealth,” wrote Cardwell.

Rick Boyer, a Lynchburg-area lawyer who represented Jones in her lawsuit against the state, said he thinks the existing law works well and the judge’s ruling upheld his contention that the state’s only role is to “accept the word of the applicable chairman.” However, he said, he doesn’t think that law applies so broadly that the state would have to accept a clearly false election notice from a local party official.

“I don’t think that the State Board of Elections is required to perpetrate a fraud,” Boyer said. “But if it’s a dispute that’s working its way through the party’s dispute resolution process … the government has no authority to resolve that dispute.”

Though the 2020 attempt to make primaries the default nominating method failed, a bill that passed a year later might prevent similar electoral confusion in the future. In 2021, the Democratic-controlled General Assembly passed legislation requiring parties that choose conventions or non-primary methods of nominating candidates to make absentee voting accommodations for overseas military members, college students, and people with disabilities.

Many in Virginia politics expect that to be so logistically difficult that the law will mean the end of party-run conventions altogether when it takes effect at the beginning of 2024.

by Graham Moomaw, Virginia Mercury

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