Mandamus ordered in primary voting case

Where the Seventeenth Senate District Legislative District Committee (17th SD LDC) of the Republican Party of Virginia voted to hold a primary election to nominate a candidate, plaintiff, the chairperson of the 17th SD LDC, is entitled to a writ of mandamus to compel state election officials to conduct a primary election.

Overview

The 17th SD LDC for the Republican Party of Virginia (RPV) “voted to select its 2023 Senate candidate via convention. At the time of this meeting, Plaintiff was both the chair of the Suffolk committee for the RPV and was chair of the 17th SD LDC.

“Thereafter, on February 25, 2023, the Second Congressional District of RPV met and purported to remove Plaintiff from the position of Suffolk chair.

“Plaintiff, at that point, was still the 17th SD LDC chair. Plaintiff maintains that her removal from the Suffolk committee chair was an ultra vires action contrary to the RPV rules of procedure, called the Plan of Organization of the Republican Party of Virginia (Plan).”

On March 1, 2023, the 17th SD LDC, “ultimately voted to determine the nomination of the 17th Senate candidate by primary. After voting to determine the method of nomination, Plaintiff notified the SBE [State Board of Elections] that the 17th SD LDC would proceed by primary. The SBE accepted notice of the primary[.] …

“[T]he SBE and Commissioner issued its Order outlining the list of districts using the primary method for nomination. Included on that list was Senate District 17. The Order specifically noted that for the localities authorized to use the primary method of nomination, including Senate District 17, ‘a notice in proper form [had] been received from the appropriate authority.’”

Later, “the SBE and Commissioner issued a new Order listing the districts who elected to use the primary method of nomination. Noticeably, on this list, Senate District 17 was not indicated as having chosen a primary.

“Plaintiff alleges that the Commonwealth surreptitiously and without notice to Plaintiff promulgated the new Order after pressure from high-ranking members of the RPV.

“The Commonwealth indicated that it removed Senate District 17 from the list of primary districts based upon the information provided to it by Richard Anderson, chairman of the RPV, who informed the Commonwealth that the vote held on March 1, 2023 was not in accordance with the Party Plan and was, therefore, improper notice.

“Based on this information, the Commissioner issued a ‘corrected order’ and transmitted such order to the parties.”

Plaintiff seeks a writ of mandamus “to compel the Commonwealth to issue a new Order to properly reflect the decision of the 17th SD LDC and the notice of its chairman to hold a primary.”

Standing

The commonwealth asserts that plaintiff lacks standing in this matter. “The Commonwealth argues that the properly injured party is the RPV itself, and Plaintiff is not entitled to maintain her action on behalf of RPV. …

“‘[A] litigant has standing if he has a “sufficient interest in the subject matter of the case so that the parties will be actual adversaries and the issues will be fully and faithfully developed.”’ …

“This Court is satisfied that Plaintiff has a sufficient interest in the subject matter of the case and is satisfied that the parties have fully developed the facts at issue.

“As the chairperson of the 17th SD LDC and the person who is authorized to give notice to the SBE as to the decision to hold a primary, this Court finds that Plaintiff does have standing to pursue her claim.”

Mandamus

“To be entitled to mandamus, a petitioner must have no other adequate remedy at law, … and must establish that the public official is required to perform ‘a purely ministerial duty imposed upon him by law.’ …

“These requirements essentially reflect a three-part requirement such that the petitioner ‘must demonstrate: (1) a clear right to the relief sought; (2) a legal duty [on the] part of the respondent to act; and (3) the lack of an adequate remedy at law.’ …

“At the outset, this Court finds that Plaintiff has satisfied the first and third requirements.

“As to the second requirement, this Court must determine if the provisions of Va. Code §§ 24.2-516 and 517 impose a legal duty. …

“Under Va. Code§ 24.2-516, the parties of the Commonwealth notify the SBE of who its chairmen are. When determining the method of nomination, ‘Each chairman shall file timely written notice with the Board whether or not a primary has been adopted and identify each office for which a primary has been adopted. The requirement to notify the Board of the adoption of a direct primary shall be satisfied when the Board receives by the deadline (i) written notice from the appropriate party chairman or (ii) a copy of the written notice from an incumbent officeholder to his party chairman of the incumbent’s selection, pursuant to§ 24.2-509, of the primary as the method of nomination.’

Ҥ 24.2-516 (emphasis added).

“Thereafter, ‘The State Board shall order the holding of a primary election in any county, city, or other district of the Commonwealth in which it is notified pursuant to § 24.2-516 that a primary is intended to be held.’

“§ 24.2-517 (emphasis added). …

“[T]his Court need only look to the plain language of §§ 24.2-516 and 517, which outline a prescribed action and response. Once the chairman of a district submits proper notice calling for a primary, the SBE ‘shall order the holding of a primary election’ …

“It is well settled in the Commonwealth that the term ‘shall’ is interpreted as imposing a mandatory act and ‘is inconsistent with, and excludes, the idea of discretion’ absent a different, fairly manifest intent. …

“It is undisputed that Plaintiff was the proper chairperson designated to give notice for the 17th SD LDC. Upon receipt of such facially valid notice, the SBE was required to order the method of nomination chosen.

“The statute, by its terms, does not allow the Commonwealth to investigate further in any capacity. To do so would undermine the statutory wall that exists between the government and the workings of the political parties of the Commonwealth.”

Ruling

“Plaintiff, as the duly appointed chair of the 17th SD LDC was entitled by her position to give notice to the SBE that Senate District 17 was to determine its nomination by primary.

“The Court finds that in failing to order a primary for Senate District 17, the SBE and the Commissioner violated their ministerial duty requiring them to order such primary.”

Petition of mandamus granted.

Jones v. Virginia Dep’t of Elections, et al., Case No. CL23-1337, March 29, 2023. (Opinion and Order) City of Richmond Circuit Court (Cardwell). VLW 023-8-018, 7 pp.