RICHMOND – The State Board of Elections on Tuesday did not act on appeal from Trudy Berry, the Democratic nominee in the 9th state Senate district in Southside, who has been fighting to get her name put on the ballot for the Nov. 7 election after her local nominating committee chair accidentally sent a document officially certifying her status as her party’s nominee to the wrong email address.
Liz Burnson, Berry’s attorney, urged the board at its monthly meeting in Richmond to use the same discretion that it has used on several occasions since 2019 when it agreed to certify the candidacies of Republican candidates who found themselves in similar situations.
“Today, Ms. Berry is only asking for the same treatment under the same circumstances and for all the same reasons that this board properly and correctly voted to certify these other candidates,” Burnson said.
The facts of this case aren’t complicated, Burnson argued. “Ms. Berry timely and correctly filed her candidate qualification paperwork. She was then notified by her local party chair that her paperwork had been certified, she had done everything correctly, and they were going to certify her candidacy to the State Board,” she said.
Berry is seeking to challenge Sen. Frank Ruff, R-Mecklenburg County, the longtime incumbent in a district that includes Charlotte, Halifax, Lunenburg, Mecklenburg, Nottoway and Pittsylvania counties, parts of Prince Edward County, and the city of Danville.
Because Berry was the only candidate to qualify for the Democratic primary, she automatically became the Democratic nominee for the 9th Senate District, Burnson said.
But Berry didn’t learn until last month that the Virginia Department of Elections never received her Party Certification of Primary Candidates form because Clem Oliver, the chair of her local nominating committee, had sent it to the wrong email address by accident.
Burnson said that at the time this happened, Oliver was gravely ill, battling cancer, and that she had since passed away. “Mrs. Oliver, when she certified Ms. Berry’s candidacy to the State Board via email, she made a typo. She misspelled the recipient’s email address by leaving off the .gov. on that email, and the board didn’t timely receive the candidacy,” Burnson said.
“The thing about this circumstance is that it’s not new, and it’s not unique,” Burnson added. She named several Republican candidates who the State Board of Elections has agreed to place on the ballot despite their paperwork arriving late or incomplete, including Del. Dave LaRock, R-Loudoun County, who in 2021 asked the board for reprieve after a local Republican Party official submitted his paperwork as an uncontested primary candidate two days late. The board agreed to take up the case and later granted LaRock’s request to place him on the ballot despite the missed deadline.
In 2019, the board also accepted late party nomination paperwork for Del. Terry Kilgore, R-Scott County, so he would be listed on the ballot as the Republican candidate that year. Kilgore was the winner of a local party convention, which should have allowed him to make the ballot as the official GOP nominee. But a snag in the delivery process resulted in a missed filing deadline.
“If the board does not vote to certify Ms. Berry’s candidacy or chooses not to take a vote today or at any other meeting, roughly 155,000 in Senate District 9 will have no choice on the ballot in November because of a three-letter typo made by a woman who was gravely ill,” Burnson said. “That is really an unconscionable result, and this board has the authority to avoid that unconscionable result by voting to certify this candidacy in line with these prior precedents.”
Berry was unable to attend Tuesday’s meeting because she was out of state celebrating her mother’s 90th birthday, but she said in a brief phone interview that she was surprised by the board’s decision to ignore her appeal, and that she was now considering filing a discrimination lawsuit.
“They certified and put on the ballot at least four Republican men during the last few election cycles, but Chairman O’Bannon didn’t even ask for a motion on my request today,” Berry said. “If I can raise the money and I can find an attorney I am going to file a lawsuit.”
Berry said she was also unsure of her next steps, but that a write-in campaign was a possibility. “I still want to give voters a choice, so I’m considering it, and I’m still talking to people to see if I can get enough support.”
In an email to Cardinal News last month Berry expressed her frustration and said that she was mostly alone in her fight to get her name on the ballot since the error became known.
“I have neither heard nor seen evidence that anyone in the party leadership (except the Chair of the Mecklenburg County Democratic Committee) is supporting my effort to persuade the Board of Elections that I deserve the same consideration and remedy as they gave Dave LaRock in 2021 when he found himself in the same situation I am in now,” Berry wrote in the email.
But on Tuesday, DPVA Executive Director Shyam Raman read the board a letter from Susan Swecker, the party chair, “respectfully” urging the body to certify Berry’s nomination.
“Ms. Berry’s name should be included on the general election ballot as the Democratic nominee in the 9th Senate District, for several reasons,” Swecker wrote.
“First, Ms. Berry complied with all legal requirements that state law imposed on her. She timely completed and filed all of the requisite candidate paperwork. Second, there is no question that Ms. Berry is the only candidate who properly and timely filed all of the requirements by the April 6, 2023 filing deadline. At 5:01 p.m. on April 6, 2023, Ms. Berry automatically became the nominee in Senate District 9.”
Swecker continued, “Finally, it is clear that Chairwoman Oliver intended to certify Ms. Berry as the nominee in Senate District 9. A typographical error in the email address does not negate the fact that Chairwoman Oliver made every effort she was able to in order to certify Ms. Berry as the nominee.”
Swecker in her letter also requested a “discussion with Department of Elections staff regarding candidate filing procedures” prior to next year to determine “a legislative solution to prevent similar situations from occurring in future election cycles.”
John O’Bannon, the chairman of the Board of Elections, told Raman that the board has previously heard appeals similar to Berry’s on an individual basis, “and some of them have been approved and some have not been approved.” He added that the board’s prior decisions were “bipartisan, and both parties were involved” in the former.
But, O’Bannon continued, “I think we would be very glad to work with you all in the department and seize this, and find things we can do tangibly to reduce the likelihood of this happening in the future.”
However, Cardinal News has learned that the Office of the Attorney General had advised the State Board of Elections before its meeting Tuesday that it did not have the statutory authority to grant an extension for the certification of Berry’s Primary Candidates form, which would have left the board no choice but to not take a vote on her appeal.
A spokeswoman for the attorney general declined to comment.