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Challenge to election system mooted by change in law

Where two Virginia Beach residents challenged the system used to elect members of the City Council, but the General Assembly changed the system before the trial court issued its decision, that mooted the suit.


Two Virginia Beach residents sued, challenging the “at-large election system used to elect members of the City Council of Virginia Beach.” The case proceeded to a six-day bench trial. Before the district court issued its post-trial decision, however, the city informed the court that Virginia’s General Assembly had enacted a new statute, HB 2198, that would significantly affect the city’s “at-large residence system” of electing councilmembers. This new law, according to the city, superseded the entirely at-large system challenged by the plaintiffs, rendering that system “no longer legally permissible as a matter of state law.” And as a result, the city argued, the plaintiffs’ case against that system was now moot.

A week after the city informed the court of HB 2198, the district court issued a comprehensive and thoroughly reasoned decision holding in the plaintiffs’ favor. It declared the city’s “at-large method of election” illegal, enjoined further use of that system and granted plaintiffs’ request for fees and costs. And after receiving proposed remedial plans from the plaintiffs, the city and a court-appointed special master, the court ordered the city to implement a plan with 10 single-member districts, including three districts where minority voters formed a majority of the voting population.


The city continues to argue that HB 2198, enacted before the district court’s ruling, mooted the plaintiffs’ case against Virginia Beach’s entirely at-large system for electing councilmembers. The plaintiffs, for their part, contend that their case survived HB 2198, but that the city’s appeal was mooted by events that transpired after the district court ruled: enactment of the Virginia Voting Rights Act and then preclearance under that law of the district court’s remedial plan.

The court agrees with the city that the plaintiffs’ case became moot with the passage of HB 2198. That law eliminated the unusual Virginia Beach all-at-large system at the heart of this case, leaving the district court without jurisdiction to rule on the legality of that system and thus without jurisdiction to direct a remedy. The court recognizes the plaintiffs’ concern that a new, HB 2198-compliant system may itself violate section two. But that is a claim that they must plead and prove first in the trial court.

The district court suggested that the city’s voluntary cessation of the challenged conduct could not moot the plaintiffs’ challenge, given that the city remained free to return to an entirely at-large system by “eliminat[ing] the district residency requirements for the seven seats on the City Council.” This misapprehends both the voluntary cessation doctrine and Virginia state law. First, the city did not voluntarily cease anything; instead, the General Assembly enacted a new voting-rights law that eliminated a device the city had kept on its books for decades.

As for state law, without further legislative action by the General Assembly, the city cannot side-step HB 2198 and return to an entirely at-large system by eliminating its residency requirements. And lacking that power, the city does not have “the authority and capacity to repeat [the] alleged harm,” as the voluntary cessation doctrine would require.

Plaintiffs maintain that they still may have viable challenges to whatever post-HB 2198 electoral system the city adopts. If they do, the parties and district court likely will have done much – though not all – of the work necessary to analyze those claims. As such, on remand, the plaintiffs may raise any claims they have against the city’s system going forward. The district court then can decide whether the plaintiffs should be permitted to amend their complaint or otherwise develop the record to pursue those claims here, or whether they are better pursued in a new proceeding.

Vacated and remanded.

Dissenting opinion

Gregory, C.J., dissenting:

I respectfully disagree that this case became moot with the passage of HB 2198. It may be that the city can no longer legally use at-large voting for seven of its 10 City Council seats, but the fact that some of the city’s electoral system is now invalid is not ipso facto enough to moot plaintiffs’ challenge to that system. Further, I would find that plaintiffs have standing to pursue this suit and affirm the district court’s conclusions on the merits.

Holloway v. The City of Virginia Beach, Case Nos. 21-1533, 21-2431, July 27, 2022. 4th Cir. (Harris), from EDVA at Norfolk (Jackson). Richard Bryan Raile for Appellants. Christopher DeSean Lamar for Appellees. Erika L. Maley for Amicus Commonwealth of Virginia. VLW 022-2-187. 64 pp.

VLW 022-2-187