the governor schedules special elections for House of Delegates and State Senate seats, when vacancies occur and the General Assembly is not in session
Source: Governor of Virginia, writ of election (January 12, 2021)
Not everyone elected to serve in the State Senate or House of Delegates will finish their term of office. Some will be elected to a different position. Members of the General Assembly can not hold two elected position, and must resign their old seat in the General Assembly to assume a new office. Some members will resign after being appointed to serve as a judge. Members occasionally quit due to ill health, and some die while in office.
Special elections are held to fill vacant positions in the General Assembly. The governor of Virginia may appoint a replacement to the US Senate, but not may not appoint any replacement to fill a vacancy in the state legislature. According to the Code of Virginia, the governor issues a "writ of election" unless the vacancy occurs while the General Assembly is in session. In that circumstance, depending upon whether the vacancy is in the House of Delegates or the State Senate, the special election is scheduled by the Speaker of the House of Delegates or by the President pro tempore of the Senate:1
State law prohibits holding a special election within the 55 days prior to a general or primary election, or on the same day as a primary election. Special elections may be held on the same day as a general election. Localities must absorb the costs of special elections, but synchronizing them with already-scheduled general elections can eliminate that financial burden.
A special election for a General Assembly seat, held at the same time as the general election for members of the US House of Representatives in an even-numbered year, would allow a Delegate to serve in the General Assembly for a year. A State Senator could serve for three years, since those officials are elected every four years.
The 29th District delegate was re-elected in 2019, but was chosen by the General Assembly to become a state judge in 2020. On the day he resigned in July, 2020, a member of the Winchester City Council immediately announced he was a candidate for the seat. The special election was scheduled for the same day as the 2020 general election. The winner was elected to serve the remainder of the term until December 31, 2021. His election created a vacancy on City Council in Winchester, triggering a temporary appointment by the City Council followed by a special election for that local office.2
The writ of election is delivered to the registrars in the jurisdictions within the election district. The notice of the election must be published for at least 10 days prior to the election.
The Code of Virginia states:3
The governor has flexibility in choosing dates for special elections for filling seats in the General Assembly. In late 2020, two members of the House of Delegates resigned. The delegate from the 90th District had been appointed as a state judge. The delegate from the 2nd District resigned in order to focus on her race for governor. Had she stayed in the House of Delegates, she would have been barred from fundraising during the general session in January-February, 2021 and any potential special session that might follow it.
Governor Ralph Northam quickly scheduled special elections to fill the two seats before the 2021 General Assembly met. Both members who resigned were Democrats, as was the governor. Had the seats stayed empty, the Democratic majority in the House of Delegates would have been narrowed to 53-45. As expected, two new Democrats won the special elections.
However, when a State Senator died just before the 30-day session started in January 2021, the governor chose to schedule that special election for the 38th District to occur in March, long after the end of the legislature's general session. The State Senator had been a Republican, and it was clear the Republican candidate would win the special election.
Leaving his seat empty created a brief 21-18 partisan balance in the State Senate. There were tie vote on several bills, including the legalization of marijuana and requiring local elections to be scheduled in November. Democratic Lieutenant Governor Justin Fairfax was able to cast tie-breaking votes, because Governor Northam had ensured one Republican seat would be vacant.
A frustrated Republican filed a lawsuit trying to force the governor to call for the special election at an earlier date, so the 38th Senatorial District would have representation for at least a portion of the session. The state judge ruled that the governor had met the requirements of the Code of Virginia:4
The significance of the empty seat was demonstrated just days after the judge's ruling. There was a tie vote, 19-19, on a bill to move all municipal elections to November. Of the 21 Democrats, 18 supported it, two opposed it, and one did not vote. Of the 18 Republicans, one supported the bill and 17 opposed it. That created a 19-19 tie, broken when the Lieutenant Governor voted in favor of the bill. Had the governor facilitated a quick election in the 38th Senatorial District, the initial vote could have been 19-20 and the bill would have failed.5
A rare attempt to recall a member of the General Assembly occurred in 2021. Conservative constituents of State Senator Louise Lucas (D-18) were angered by her support of Black Lives Matter protestors in June 2020, especially after they tore down a 56-foot tall Confederate monument in downtown Portsmouth. The city's police chief filed felony charges against Lucas. In the subsequent political battle the Commonwealth Attorney refused to prosecute, the police chief was fired, and Lucas retained her position as president pro tempore of the State Senate. She was the first black woman to hold that job. Her supporters claimed the recall advocates, led by the Virginia Tea Party, were motivated in part by racism.
Under Virginia law at the time, the recall advocates had to file a petition with the Circuit Court signed by at least 10% of number of voters in the last election for her State Senate seat. The recall advocates claimed they had 7,000 signatures, far exceeding the required number of 4,651. Since Sen. Lucas had not been convicted of a crime, the basis for the recall had to be "neglect of duty, misuse of office, or incompetence in the performance of duties."
The recall process in Virginia is different than in other states, where the process requires an election to determine if the official should be replaced. The Circuit Court judge is empowered to remove some elected officials, or to allow them to stay in office. The petitioners wanted the judge, who had been appointed by the General Assembly, to remove a State Senator for "misuse of office" and call a special election to fill her incomplete term. No Virginia judge has ever been asked to determine that a member of the General Assembly was unfit to remain in office, or to replace the judgement of the voters who participated in the last election with the judgement of a single appointed judge.6
Lawyers for State Senator Lucas argued that the recall procedures in state law did not apply to members of the General Assembly, since the state constitution had specific provisions for removing state legislators from office. Through a vote of two-thirds of the members, the State Senate can expel members. The lawyers stated:7
A judge agreed with the lawyers of State Senator Lucas and quickly dismissed the recall petition:8
Also in 2021, the member of the House of Delegates 89th District won re-election in November and resigned his seat in December. Del. Jay Jones had lost his race earlier in the year for the Democratic nomination for Attorney General, but easily won re-election to the House. Del. Jones was a well-respected leader in the Democratic Party and his resignation caught people by surprise. He said he was resigning after discovering that he was going to become a father. However, after Republicans won 52 of the 100 seats in the House of Delegates in November, 2021, Del. Jones would have been a member of the minority party in 2022.
Because the General Assembly was technically in session and Democrats were in the majority, House Speaker Eileen Filler-Corn rather than Governor Northam was responsible for setting the date for a special election. She quickly issued a writ for January 11, the day before the General Assembly would meet. The presumption was that the heavily Democratic district would elect a Democrat, ensuring 48 members of that party for most of the regular session of the 2022 General Assembly. The district boundaries for the special election were not altered to reflect the redistricting required after the 2020 Census, because the Virginia Supreme Court had not yet adopted new maps.
Just 488 voters participated in the firehouse primary that selected the Democratic candidate to run in the special election for the 89th District. In the January 11, 2022 special election, the Democratic candidate won by 3,956-1,300 votes, with 11 write-in votes for other candidates. By way of comparison, almost 22,000 voters had cast ballots when Del. Jay Jones won the November 2021 election by a 17,450-4,340 margin.9
That quick call for an election in the 89th District led to a State Senator filing a bill for the 2022 General Assembly that would require elections be scheduled within 30 days, if a vacancy in the General Assembly occurred between December 10 and March 1.
At the time, a Republican governor was about to be inaugurated and control of the House of Delegates was switching to the Republicans. Democrats in the General Assembly were faced with the possibility that the scheduling games which had benefitted their party in recent years might become a problem when Republicans had the power to schedule special elections.
Political scientist Stephen J. Farnsworth at the University of Mary Washington suggested legislators might support such a bill independent of their short-term partisan interests. The legislature is an independent legislative body with a long-term institutional rivalry with the Executive Branch, and may not want the governor to control when legislators will be replaced:10