When Del. Jeff Campbell, R-Smyth County, resigned in June 2023 in anticipation of being appointed a judge, he had just six months left in his two-year term — and only a one-day special session to deal with a budget that everyone knew was going to pass almost unanimously.
Nonetheless, a special election was scheduled that summer to pick his successor.
That’s because state law requires special elections be held to fill legislative vacancies — and a new state law that took effect that summer (sponsored by state Sen. David Suetterlein, R-Roanoke County) required they be held promptly.
When Rep. Donald McEachin, D-Richmond, died in November 2022, a special election was called to fill that seat.
That’s because state law requires a special election to fill a congressional vacancy.
When Joe Cobb was elected mayor of Roanoke in December following a recount, that meant he had to resign his city council seat, which still had two years left to run.
The Roanoke City Council then set out to appoint a successor to fill the remainder of Cobb’s term. It has failed to do so — the remaining six council members can’t agree on the three finalists and so they have asked the court to pick a council member.
That prompted Lynchburg council member Marty Misjuns to post on Facebook: “The circus has moved to Roanoke.”
This certainly isn’t an auspicious start for a Roanoke council that has a 5-1 Democratic majority (the divisions on Lynchburg’s 6-1 Republican majority council show how large majorities don’t always equal widespread agreement).
I’m curious about something else, though: Why is Roanoke allowed to appoint a council member to serve two years when state law requires special elections for the General Assembly or Congress even when far less time might be involved? That two-year stint on the council may be only part of Cobb’s term but in terms of time, this equals to a full term for a member of the House of Delegates or the House of Representatives.
The immediate answer lies in the city charter, which spells out the procedure for filling vacancies on the council: If less than two years of a term remains to be filled, the council fills it. If more than two years remain to be filled, a special election is called.
Should the Roanoke charter be changed to require special elections whenever there’s a vacancy? Maybe Roanokers will want to talk about that. Here’s some math: A vacant state Senate seat is 1/40th of the state Senate. A vacant House of Delegates seat or a vacant U.S. Senate seat is 1/100th of the chamber. A vacant House of Representatives seat is 1/435th of that body. All those require special elections. Here, though, a vacant Roanoke city council seat is 1/7th of the council but no special election is required.
So how unusual is it to appoint a council member for what now would be just under two years?
I looked through the charters of all 38 cities in Virginia and here’s what I found:
- Sixteen only mention filling vacancies through appointments.
- Ten specifically require a special election (although they often allow for an interim appointment until a special election can be held).
- Six (including Roanoke) provide for special elections if the term remaining is more than two years but otherwise fill vacancies through appointments.
- Six leave the process up to whatever the applicable state law is.
That’s where things get interesting. In researching this column, I’ve been given conflicting interpretations of that “applicable state law.” I suppose that’s what keeps lawyers in business.
The code section that deals with filling vacancies — 2.42-225 — begins with: “This article applies to vacancies in any elected constitutional or local office if there is no other statutory or charter provision for filling a vacancy in the office.” That seems pretty straightforward, but then the next sentence says: “Further provisions within this article which specifically override other statutory or charter provisions shall prevail.”
So which provisions override charters and which ones don’t?
Further on in that code section — 24.2-228 — there’s language that describes how to make an interim appointment but then it goes on to say: “Notwithstanding any charter provisions to the contrary, the person so appointed shall hold office only until the qualified voters fill the vacancy by special election …”
Michelle Gowdy, executive director of the Virginia Municipal League, says one city attorney has advised her that the governing language is that first sentence — “this article applies to vacancies in any elected constitutional or local office if there is no other statutory or charter provision for filling a vacancy in the office” — and the other language only applies if there is no language in the charter.
However, a bill that the General Assembly passed in 2010, which added that “notwithstanding” language, seems to suggest that the legislature’s intent was to require special elections in all circumstances. The unofficial summary of the bill on the General Assembly website (and “unofficial” may be the operative word here) is pretty plain: “Provides that vacancies in a governing body or elected school board shall be filled by special election. If the vacant position is not that of a constitutional officer, the position may be filled temporarily by an interim appointment. The requirement for a special election overrides charter provisions that allow a governing body or school board to appoint a person to serve the entire remaining portion of a term.”
So could a case be made that Roanoke should be electing a successor to Cobb? Interpretations vary.
Here’s what is quite clear, though. Three cities — Chesapeake, Hampton and Virginia Beach — have charters that specifically say if a council member wants to run for mayor, and their terms don’t align, then the council member must resign so that a special election can be held at the same time as the mayoral election. Is that a good idea or a bad one? All I know is that if Roanoke had such a provision, we wouldn’t have this situation because Roanokers would have already elected a successor to Cobb.
