Virginia weighs changes to ‘fuzzy’ recall system that lets judges remove local officials

‘The process we have in place now is just unworkable’

By: - August 9, 2022 12:04 am

The Loudoun County Courthouse in Leesburg, Va. In Virginia, recalls happen through the circuit courts, with judges weighing evidence and arguments.

Activists in Virginia are increasingly turning to the state’s court-driven recall process to try to take out their frustrations on local officials they feel have done something wrong. 

In Prince William County, activists have launched recall efforts against two county supervisors over their alleged connections to the data-center industry as the county considers a massive data center project. In Virginia Beach, several school board members are facing recall efforts over COVID-19 school closures. And a recall effort against an Isle of Wight County school board member who clashed with local residents opposed to school mask mandates accused the official, among other alleged offenses, of showing “a pattern of using reckless language to attack those he disagrees with.”

The fact that the recalls almost never work doesn’t seem to be stopping the trend, but it’s causing some lawmakers to rethink a system that empowers judges, not voters, to decide when politicians deserve to be kicked out of office early.

In Virginia, recalls happen through the circuit courts, with judges weighing evidence and arguments in a procedure that can at times look more like a criminal prosecution than part of the democratic process. State law doesn’t let Virginians directly initiate a recall election unless their local government has its own recall mechanism.

Instead, activists have to gather enough petition signatures (10% of the total votes in the last election for the office) to take their claims to a judge. Those claims are almost always dismissed as insufficient, indicating activists and judges have different ideas about what counts as “neglect of duty, misuse of office, or incompetence” that has a “material adverse effect” on the office, the loosely defined legal standard for removal of an elected official. The law also lays out specific misdemeanor offenses — like drug dealing, hate crimes and sex crimes — that can lead to the removal of a local officeholder. Felony convictions require elected officials to forfeit their office.

The growing focus on the state’s nebulous recall process has inspired some Democrats to try to change the law, which they say has forced many local officials into protracted legal fights, often over accusations from conservative-leaning groups targeting progressive school board members and prosecutors. 

“The recall movement seems to be an attempt to oust people for votes they don’t like or political decisions they don’t like. Which is not what it was ever intended for,” said Sen. Jennifer McClellan, D-Richmond, who sponsored a recall reform bill earlier this year that passed the Democratic-controlled state Senate but didn’t advance in the Republican House of Delegates.

Consideration of the bill, which would have moved the state to an election-based system with a higher threshold for triggering recalls, was pushed to the 2023 legislative session, with lawmakers indicating they’ll take a harder look at what Del. Mark Sickles, D-Fairfax, called a “serious subject.”

The existing recall system “is really fuzzy now,” Sickles said at a hearing in March.

McClellan’s bill, crafted with input from the progressive Virginia Grassroots Coalition, would have raised the signature requirement to 30% of votes cast in the last election while removing the provision allowing recall attempts for broad claims of neglect of duty or incompetence. McClellan said the existing law was meant to apply in cases where an official had committed a crime or clearly violated their oath of office, not the type of routine political disagreement she says should be decided through regular elections. Her bill would have allowed recall elections to take place within 150 days of a petition being certified. 

“If you’re going to, in effect, throw out the results of an election, it should be an election that does that,” McClellan said. “Not a court decision that very few people get to participate in.”

Some GOP-aligned recall proponents say they too want to see the law changed to make it easier to hold elected officials accountable if enough people in the community they serve are unhappy with their performance.

“The process we have in place now is just unworkable. And it’s very rare that it goes anywhere,” said Ian Prior, a Republican operative who runs Fight for Schools, a group that’s pursued recalls against six of nine school board members in Loudoun County, a hotbed of school culture-war battles. One Loudoun school board member targeted for a recall, Beth Barts, resigned from office while the effort was underway. A judge dismissed recall efforts against two other school board members in May, according to the Loudoun Times-Mirror.

The political dimension to recalls, Prior said, is “inescapable,” particularly since prosecutors and judges who oversee them usually have their own political connections that can require recusal from recall cases.

“It stains the court process with politics,” Prior said. “And judges don’t want to touch it.”

Prior agrees with some aspects of the proposal put forward by McClellan. He said Virginia should look at how recalls work in other states and provide more clarity on how citizens can “effectuate change” if a significant portion of a community feels its warranted.

There won’t be any California-style gubernatorial recall elections any time soon in Virginia, because the recall law here only applies to local officials. The state Constitution lays out a process for governors, lieutenant governors and attorneys general to be impeached by the General Assembly. And in 2021, a judge in a case involving a failed recall attempt against Sen. Louise Lucas, D-Portsmouth, ruled the law doesn’t apply to state legislators, who can be expelled by a two-thirds vote of the chamber they serve in.

State lawmakers have occasionally tinkered with the list of offenses worthy of ousting local officials over. Several sex crimes were added in 2014 after a former Albemarle County supervisor was convicted of sexual battery and had a recall petition against him dismissed as he resisted resigning from office. Minor marijuana offenses will come off the list in 2024 after the state legalized possession of small amounts of cannabis.

The targets of some recall campaigns are also getting increasingly vocal about criticizing the current system.

Loudoun Commonwealth’s Attorney Buta Biberaj, who is being targeted for recall by conservative groups accusing her of being soft on crime, said recall campaigns create a “dark cloud” over the person they target but rarely lead to anything. One specific flaw in the process, Biberaj said, is the lack of any sort of time limit for groups gathering petition signatures. That open-endedness, she said, allows operatives to use recall campaigns as a general tool for politicking and fundraising.

“It’s one thing if your community is dissatisfied,” Biberaj said. “It’s another if you’ve got agitators coming from the outside and riling people up.”

Biberaj is being targeted for recall by Virginians for Safe Communities, a right-leaning group that launched a year ago with the stated goal of recalling her and two other Northern Virginia prosecutors who support criminal justice reforms. The campaign against her, she said, is based on “a lot of misstatements and misinformation.”

After Biberaj published an op-ed in the Washington Post this summer in which she criticized the recall system for allowing “political shenanigans,” Virginians for Safe Communities released a statement saying she was “complaining that the people of the Commonwealth of Virginia can hold her ACCOUNTABLE.”

“Buta Biberaj deserves a first class ticket to obscurity. We’re booking it now,” Virginians for Safe Communities President Sean Kennedy said in the emailed release. “Our campaign is making significant progress and is fast approaching the finish line.”

Below the statement was a “Donate HERE” button.

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Graham Moomaw
Graham Moomaw

A veteran Virginia politics reporter, Graham grew up in Hillsville and Lynchburg, graduating from James Madison University and earning a master's degree in journalism from the University of Maryland. Before joining the Mercury in 2019, he spent six years at the Richmond Times-Dispatch, most of that time covering the governor's office, the General Assembly and state politics. He also covered city hall and politics at The Daily Progress in Charlottesville. Contact him at [email protected]

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