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The chairman of the Republican Legislative District Committee for the newly created 17th state Senate District has filed a suit against the Virginia Department of Elections and the State Board of Elections, saying they meddled in internal party affairs by changing the district’s nomination method from a primary to a convention.
In her suit, Dawn Jones alleges that state election officials unlawfully made the change under pressure from Gov. Glenn Youngkin and Attorney General Jason Miyares after initially confirming the district committee’s decision to settle the nomination contest during a state-run primary.
All of Virginia’s 140 legislative seats are up for election in November. State law mandates that during an election year each district committee must certify to the State Board of Elections by March 1 that it has selected a particular nomination method. For example, if the chairman certifies a primary as the chosen method, then the board has no choice but to place this election on the primary ballot.
“The statute is clear, it says that once the legislative district chairman has certified the nomination method, the State Board of Elections shall order the holding of a primary election in any district of the commonwealth in which it was notified,” said Rick Boyer, a Lynchburg attorney specializing in election law who has filed the suit on the behalf of Jones.
“This is not a discretionary statute, it’s a mandatory statute. At the heart of our argument is there is no discretion and no catalog of options to choose from. They only had one choice under the statute, to order a primary election. And they initially did that, and then backed off,” Boyer said in an interview Wednesday.
A spokeswoman for Youngkin declined to comment Thursday, citing pending litigation. A spokeswoman for Miyares also declined to comment.
Two candidates are vying for the Republican nomination in the 17th Senate district, which was approved by the Virginia Supreme Court in December 2021: Hermie Sadler, a former NASCAR driver and entrepreneur from Emporia, and Del. Emily Brewer, R-Suffolk, who announced in early 2022 that she would retire from her House of Delegates seat to run for the state Senate.
The newly created district includes all of Isle of Wight, Southampton, Greenville and Brunswick counties, the cities of Suffolk, Franklin and Emporia, and parts of Portsmouth and Dinwiddie County. An analysis from the nonpartisan Virginia Public Access Project found that the district’s share of votes from the 2021 governor’s race favored Youngkin, a Republican, by about 5% over former Gov. Terry McAuliffe, a Democrat.
According to media reports the district’s Republican Legislative Committee initially voted in late December to hold a party-run convention sometime between May 4 and June 20 to pick a nominee.
Unlike during a primary, which this year is held on June 20 at polls across the state, a convention can be held on a different date and is limited to one location.
The so-called delegates tasked with nominating their party’s candidate are required to fill out a convention delegate form before casting their ballots, assuring that they are indeed members of the Republican Party. Because Virginia does not track voters by party registration, Democrats can vote in a Republican primary, and vice versa.
Jones’ suit says that the committee, which consists of all county-level Republican Party chairs from the localities comprising the 17th Senate district, changed its vote from the convention method to a primary at a meeting on March 1.
After Jones notified the State Board of Election of the committee’s decision, “defendants recognized this notice and initially ordered a primary” on March 9, court documents show.
However, on the following day, “the governor and attorney general (or their representatives) pressured defendants to rescind this because, upon information and belief, they supported a candidate who they believed would perform better at an intra-party convention than at a state-run primary,” the documents allege. “As a result, late in the evening of Friday, March 10, 2023, defendants quietly changed the list of primaries to no longer include a Republican primary in Senate District 17.”
When asked about evidence supporting Jones’ allegations, Boyer, the attorney who filed the suit, said that Jones has information of “conversations between individuals with the governor’s staff and the attorney general’s staff who were in touch with Susan Beals, who is the commissioner of the Department of Elections, and instructed her to change this decision and go with a party-run process.”
Boyer said that aside from violating state law, the administration’s push to overrule the committee’s decision to hold a primary also violated the First Amendment’s protection of free speech, assembly and petition, which extends to include a “freedom of association.”
“Let’s say the 17th District Democrats wanted to have a primary because it favors a particular candidate, and a Republican governor said, ‘You know what, we think the convention process would favor this other candidate who would be weaker in the general election. We are going to order the State Board of Elections to change its mind and to not go with a state-run primary.’ I think this would create a huge freedom of association problem,” Boyer said.
The governor and attorney general have no authority to influence such decisions, Boyer added.
“If this were a Democrat committee that we are talking about, everyone would clearly grasp that a Republican governor or attorney general cannot tell a Democrat committee how to resolve its internal party strife. The same thing applies here: The governor can’t tell a Republican committee how to resolve its internal party strife. The government must follow the statute.”
Larry Sabato, the director of the Center for Politics at the University of Virginia, said that he had never heard of a case where a governor influenced a district committee’s decision on its nomination method.
If proven true, it would be “a strong-arm move” by Youngkin, Sabato said. “Clearly, he wants Brewer and not Sadler to be the GOP nominee. No doubt that will upset backers of Sadler, but I suppose Youngkin sees Brewer as more electable. Every seat matters in what is likely to be a close statewide battle for control of the Senate.”
Sabato added that he believes Virginia Republicans are unlikely to back down and reverse Youngkin’s decision, even if that was possible.
“The key is ‘his party,’” Sabato said. “If Youngkin were trying to do the same thing to Democrats in a contested primary, there would be a major uproar. But he’d be very unlikely to interfere in the other party’s choice of nomination method.”
The Republican Party of Virginia — the highest state GOP authority — denies that the 17th’s Legislative District Committee voted on March 1 to hold a traditional primary on June 20.
The Smithfield Times reported the next day that while the RPV issued its own statement confirming that the committee had met on March 1, the state GOP contended that after approving the meeting’s minutes, the body “failed to maintain a quorum and was unable to transact business from that point forward.” For this reason, “any votes taken after the loss of the committee quorum are invalid with regard to designating a method of candidate nomination or any other business,” the statement said, according to the report.
A quorum refers to the minimum number of group or organization members that must be present for official business to be carried out. This minimum number is usually set by the organization’s bylaws.
But Boyer said that his client maintains that there was a proper quorum, and that Jones, as the committee’s chairman, had the authority and responsibility to make the call — despite an ongoing feud over her role as the chairman of the Suffolk Republicans, a lower-level panel.
“The state party’s actions at that point to try to declare the Suffolk committee to be a non-functioning committee and dismantling and replacing the committee, those things are all on appeal and will eventually be resolved in April at the State Central Committee’s meeting in Richmond,” Boyer said.
In the meantime, however, Jones in her role as the chair of the district committee had to make a certification to the State Board of Elections prior March 1, “and all parties agree that Dawn is the chairman,” he said.
Whether Jones is the chairman of Suffolk Republicans or not is, “a different story, but she is the chairman of the 17th legislative district committee. It’s not the job of the State Board of Elections to determine who is the chairman of Suffolk Republicans, it’s their job to place the primary elections on the ballot.”
The Republican Party of Virginia did not respond to several emails Thursday.
Brewer, the district’s current delegate, in an email Thursday did not address the 17th District committee’s March 1 certification of a primary.
“The convention was the method of nomination selected on Dec. 27, 2022, and the convention call was issued March 8, 2023. It will be held June 3rd at Paul D. Camp Community College,” Brewer said. “Both myself and my opponent are working to collect delegate forms for the upcoming convention. I am proud to be the battle-tested conservative running in this race.”
Sadler, Brewer’s opponent, said in a phone interview Thursday that he plans to win the nomination regardless of the format. “My frustration is that the RPV and other powers that be are not supposed to be getting involved in these types of decisions, and when I entered the race last year, all I asked for or hoped to get was a fair and transparent process that the people could decide who they wanted their nominee to be.”
But there appear to be “other people, either within the party or the upper levels of government, that are trying to put their fingers on the scales and slant the field one way or another to potentially benefit one candidate over the other,” he said.
Sadler added that while he isn’t concerned with the method of the nomination process, “there needs to be full transparency on why this nomination was accepted, posted and then rescinded. I never got any notifications on why it was rescinded and who was responsible for it.”
Because Boyer’s efforts to contest the State Board’s decision to change the nomination method is pushing a hard April 6 deadline by which all statewide primary candidates must be placed on the ballots, Boyer has also filed an emergency injunction, asking the Richmond Circuit Court to order the Department of Elections to add Sadler’s and Brewer’s names on the primary ballot.
The court is set to hear arguments on the injunction on Monday at 8:30 a.m.
“For a trial we’ll have to find out the details and correspondence during discovery once we get past April 6,” Boyer said. “If the court does not act by that point, it’s really too late for the Board of Elections to do anything.”
