Replacing Members of the General Assembly

the governor schedules special elections for House of Delegates and State Senate seats, when vacancies occur and the General Assembly is not in session
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

When a vacancy occurs in the membership of the General Assembly during the recess of the General Assembly or when a member-elect to the next General Assembly dies, resigns, or becomes legally incapacitated to hold office prior to its meeting, the Governor shall issue a writ of election to fill the vacancy. If the vacancy occurs during the session of the General Assembly, the Speaker of the House of Delegates or the President pro tempore of the Senate, as the case may be, shall issue the writ unless the respective house by rule or resolution shall provide otherwise...

Notwithstanding any provision of law to the contrary, no election to fill a vacancy shall be ordered or held if the general or special election at which it is to be called is scheduled within 75 days of the end of the term of the office to be filled.

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

A special election to fill a vacancy in any constitutional office shall be held promptly...

However, 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, the governor chose to schedule that special election for the 38th District to occur in March, long after the end of the legislature's 2021 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. 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 code is silent as to the time of the election. It does not mandate any time or specific amount of time to set a special election. Thus, the conclusion has to be that the timing of the election is clearly within the governor's discretion.

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.5

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.

Replacing Local Officials

Replacing Officials Elected State-Wide

Links

References

1. "Section 24.2-216. Filling vacancies in the General Assembly," Code of Virginia, https://law.lis.virginia.gov/vacode/title24.2/chapter6/section24.2-683/ (last checked January 15, 2021)
2. "Section 24.2-682. Times for special elections," Code of Virginia, https://law.lis.virginia.gov/vacode/title24.2/chapter6/section24.2-682/; Collins resigns from state legislature to become a judge; Wiley announces he will run for seat," Winchester Star, June 30, 2020, Winchester Star, November 27, 2020, https://www.winchesterstar.com/winchester_star/bell-appointed-to-ward-1-council-seat/article_25946a83-7128-5152-a070-ad3011f6463a.html (last checked January 15, 2021)
3. "Section 24.2-682. Times for special elections," Code of Virginia, https://law.lis.virginia.gov/vacode/title24.2/chapter6/section24.2-682/ (last checked January 15, 2021)
4. "Tim Anderson Sues Virginia Governor Over Senate District Special Election," The Virginia Star, January 15, 2021, The Virginia Star, January 15, 2021, https://wcyb.com/news/local/southwest-virginia-judge-dismisses-special-election-lawsuit-filed-against-gov-northam (last checked January 21, 2021)
5. "After tiebreaker, Senate passes bill moving local elections to November," Virginia Mercury, January 21, 2021, https://www.virginiamercury.com/2021/01/21/after-tiebreaker-senate-passes-bill-moving-local-elections-to-november/ (last checked January 22, 2021)


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