RICHMOND – A new measure aimed at preventing political toying with special elections in the state legislature will be considered by the General Assembly when it convenes for its 2022 session next week. The legislation, sponsored by state Sen. David Suetterlein, R-Roanoke County, would require certain vacancies in the House of Delegates or the state Senate to be filled within 30 days of a member’s departure or death.
“The bill ensures that a political leader cannot deny constituents their elected voice in the General Assembly by unnecessarily delaying a special election,” Suetterlein said in a recent interview. Instead, a special election must be called within a month if the vacancy occurs between Dec. 10 and March 1, when the General Assembly is getting ready to reconvene.
Suetterlein’s concern isn’t unfounded. When state Sen. Ben Chafin, R-Russell unexpectedly died due to complications from COVID-19 on New Years Day 2021, Gov. Ralph Northam waited until March to call for a special election to fill the vacancy. Northam’s move left Mr. Chafin’s constituents in the massive 38th state Senate district without representation for the duration of the 2021 legislative session, which ended Feb. 27 last year. It wasn’t until more than three weeks later, on March 22, that Travis Hackworth, a Republican from Tazewell County, faced his Democratic opponent Laurie Buchwald, defeating her with 75% of the vote.
“Governor Northam chose to delay calling a special election in a very conservative Southwest Virginia district for 81 days, and as a result, this part of the state was missing a state senator, and that had a significant impact on the composition of the senate,” Suetterlein said. Several bills – including some related to the legalization of marijuana or the dates for local elections – advanced only because Lt. Gov. Justin Fairfax cast tie breaking votes. “This also means that Southwest Virginia didn’t have the benefit of the additional advocate for things related to economic development, the Second Amendment, and public education,” Suetterlein said.
Stephen J. Farnsworth, a political scientist at the University of Mary Washington, said that the possibility that a governor has the ability to manipulate a session by delaying a special election for a vacancy is not a good policy. “The voters of a district where a member has resigned or died need to have new representation as soon as possible,” Farnsworth said.
This is particularly important in Virginia, given the state’s abbreviated legislative sessions, Farnsworth said. “The current law gives governors the opportunity basically to delay an election until after the session, or at least the bulk of it.”
State Sen. Creigh Deeds, D-Bath County, said at first glance Suetterlein’s bill is “a pretty good idea,” but that he would also like to see some flexibility baked into the legislation. “Last year, with the pandemic, the wheels of government were pretty slow,” Deeds said, referring to the special election to fill Mr. Chafin’s seat. “Under these unusual circumstances, it’s not like you can get the election machine running right away, and that was the problem with scheduling an election last year.” Still, Deeds said he would consider voting in favor of the bill, but he said he would like to read the language first.
Under current law, only the governor can set a special election to fill a vacancy in either legislative body, unless the General Assembly is already in session. In the latter case, the Speaker of the House of Delegates or the president pro tempore of the Senate would set the date for a new election, depending on which chamber the vacancy occurs. There are currently no time constraints.
Because the House technically is still in a special session, Speaker Eileen Filler-Corn, a Democrat, in December issued a writ of election initiating a special election to be held Jan. 11 to fill the seat vacated by Del. Jay Jones, D-Norfolk, in the 89th House District. Jones, who had mounted an unsuccessful primary challenge against incumbent Mark Herring in the race for attorney general last year, announced on Dec. 11 that he would resign his House seat in order to prioritize time with his family as he and his wife prepare to welcome their first child.
Within days, Filler-Corn called for the special election, setting the deadline to file a candidacy for Dec. 22. Her move all but assured that Jones’ seat in a safely Democratic seat would be filled before the General Assembly reconvenes.
“Speaker Filler-Corn announced an election within 30 days so the people of Norfolk would have representation,” Suetterlein said. “But regardless of a Republican or Democratic district, I want Virginians to have a voice.”
Suetterlein’s measure would require the governor, speaker or president pro tempore to “immediately issue the writ to call the election” upon receipt of written notification by a member or member-elect of his resignation as of a stated date, which would not be revocable after the date stated by them for their resignation or after the 45th day before the date set for the special election.
Del. Sam Rasoul, D-Roanoke, hailed Suetterlin’s proposal as “a good bill that’s well intentioned,” but he would also want to make sure that voters are left with enough time to make an informed choice during a special election. Rasoul was himself elected in a special election – called by then-Gov. Bob McDonell, a Republican – in 2014, after the resignation of Del. Onzlee Ware in November 2013. “I think that we should do everything that we can to ensure constituents are not left without representation for too long. Anything that we can do to improve the process is welcome,” Rasoul said.
“This is really not a partisan issue, because it’s an issue where the legislature has interests that can diverge from the governor,” said Farnsworth, the political scientist.
While the potential measure to change the status quo hasn’t been consistently on the forefront of political conversation in Virginia in the past, “the nearly evenly divided partisan divisions in Richmond suggest a potential for mischief that has sometimes been contemplated in the past,” Farnsworth said. “The potential downside is the speed to find a nominee, but that seems like a small price to pay compared to disenfranchising tens of thousands Virginians for months as can now be done.”