Democrats question Youngkin election order and ex-lawmaker’s status as judge

Democratic leaders in the Virginia Senate are questioning the constitutional validity of an Aug. 29 special election for a Southwest Virginia House of Delegates seat and suggesting Gov. Glenn Youngkin doesn’t have the power to set it in motion.

In a letter to Youngkin this week, Senate Majority Leader Dick Saslaw, D-Fairfax, and Sen. Mamie Locke, D-Hampton, said they believe the governor’s recent actions were improper because, in their view, the General Assembly never fully adjourned from a special session that began in April of 2022. 

Because of that, Saslaw and caucus chair Locke said former Del. Jeff Campbell, a Republican from Smyth County, shouldn’t have been able to become a judge this summer. And the power to call a special election to represent Campbell’s heavily Republican district for the rest of the year, Senate Democrats contend, lies not with the governor but with House Speaker Todd Gilbert, R-Shenandoah.

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“Your actions and the actions of the Circuit Court Judges of the 28th Judicial Circuit have now created legal uncertainty,” the Democrats’ letter said. “Your actions will also cause an election to take place under a cloud of legal uncertainty. There is also now a judge on the bench whose legal authority is in dispute who is rendering judgments in civil and criminal cases on a daily basis.”

The Democrats’ letter, dated Aug. 8, was also sent to Gilbert and Supreme Court of Virginia Chief Justice S. Bernard Goodwyn.

In a statement Wednesday, Youngkin spokesperson Macaulay Porter said the governor called the special election because “the House is in recess.” She added Youngkin acted in accordance with a new law that took effect July 1 requiring the governor to call special elections within 30 days to fill General Assembly vacancies that occur “during the recess of the General Assembly.”

Last year, the governor seemed to sidestep the dispute over the General Assembly’s status by issuing a joint election order with Sen. Louise Lucas, D-Portsmouth. That order set a special election in January to fill a state Senate vacancy in politically competitive Virginia Beach.

The full General Assembly has been absent from Richmond for months, but being “in session” is a malleable term that isn’t necessarily tied to lawmakers being at their desks casting votes on bills. 

The current dispute began in 2022 when the Republican-led House voted to adjourn the special session sine die, a move to formally end a session Youngkin called to give lawmakers more time to wrap up unfinished business like the state budget. The politically divided legislature briefly met last September to attempt to fill a vacancy on the State Corporation Commission. After they failed to do so, the two parties disagreed on the circumstances of how they were leaving town.

The Democratic Senate did not vote to adjourn sine die, a procedurally significant step that presumably limited Youngkin’s powers to fill government vacancies and call special elections. Under the state Constitution, those powers fall to General Assembly leaders while the General Assembly is in session.

Senate Democrats have pointed to a constitutional provision declaring neither legislative chamber can adjourn for more than three days “without the consent of the other.” Because the Senate left open the possibility of returning, Democrats say the special session remains ongoing.

The Democratic senators gave no indication of whether they plan to take legal action challenging Campbell’s status as a judge or the upcoming special election.

In an interview Wednesday, Sen. Scott Surovell, D-Fairfax, said it was important for his side to formally object to an improper process that could have bigger ramifications if repeated in the future.

“We could be at issue about something that’s a lot more important, like the validity of a Supreme Court appointment, or an SCC appointment, or a circuit court appointment or a very important election,” Surovell said. “I think it’s important for the rule of law that we all follow the Constitution and the code of Virginia. The governor has shown a propensity to not care what the law is many times in the two years he’s been in office.”

Surovell pointed to Youngkin’s decision to change the name of a state government job defined in law as director of diversity, equity and inclusion, efforts to pull Virginia out of the Regional Greenhouse Gas Initiative and the Freedom of Information act battle over emails sent to Youngkin’s education tip line, which the governor touted as a way for parents to help flag examples of critical race theory in schools.

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Though the General Assembly hasn’t spent much time working in Richmond recently, legislators have left one of their key tasks unfinished.

Lawmakers failed to reach a bipartisan budget deal earlier this year and have been unable to come to an agreement in sporadic negotiations over the summer. Still, the General Assembly hasn’t given up hope for the prospect of initiating another special session in the weeks ahead to pass a budget deal.

If that were to happen, Senate Democrats asserted, Campbell’s status as a judge could be impacted due to the temporary nature of appointments made without the General Assembly’s approval.

“Unless the new ‘judge’ disputes the legality of the special session necessary to codify an anticipated budget, his appointment will lapse 30 days after the Senate returns,” the Democrats wrote. 

State law allows local judges to fill general district court vacancies while the General Assembly isn’t in session, which is what happened in Campbell’s case. When the legislature is in session, that power lies with the General Assembly.

A message left with the office of Smyth County Circuit Court Chief Judge Deanis L. Simmons, who oversaw Campbell’s appointment to the bench, was not returned Wednesday.

Saslaw and Locke said Democrats don’t intend to field a candidate in the special election against Republican Jed Arnold, Campbell’s former aide.

“The call for a special election when the general election is in November, less than 90 days away, and with Democrats not fielding an opponent, seems like a waste of time and money,” the Democrats said. “But, if Speaker Gilbert wishes to call an election, it is his prerogative.”