2023 elections bring new scrutiny of Virginia’s ‘sore loser’ rule

State pushes back against Democratic candidate’s lawsuit seeking to undo primary loss

By: - September 27, 2023 12:04 am

Signs at a polling location in Buckingham County, Va., November 3, 2020. (Parker Michels-Boyce / For the Virginia Mercury)

Virginia’s so-called “sore loser” law is supposed to ensure that when a candidate is defeated in a Republican or Democratic primary, they can’t drop their party affiliation and appear on the general election ballot next to the person who beat them.

As the state’s closely watched election season, which will determine control of all 140 seats in the General Assembly, ramps up, both the letter and spirit of that law are being tested. A handful of unsuccessful primary candidates have tried to keep their campaigns alive after defeat while attacking their own parties for allegedly corrupting the process.

Makya Little, a Northern Virginia House of Delegates candidate who narrowly lost a Democratic primary in June, went as far as filing a lawsuit that seeks to have her primary loss overturned. The suit, which has not yet been resolved in Richmond City Circuit Court, also seeks to have Little’s name appear on ballots as an independent candidate, despite the fact that she, like all primary candidates, signed a form acknowledging her name couldn’t be on the ballot if she lost her primary.

In occasionally blunt language, attorneys representing state election officials argued Little’s case should be thrown out because she and her supporters are “trying to convert their disappointment into a lawsuit.”

“This case is about an attempt by a defeated politician to overturn the results of an election,” wrote the state’s attorneys. 

The state is also seeking to add Rozia Henson — the Democrat who defeated Little in the primary by just 49 votes — as a party to the lawsuit, saying the case has ramifications for him as the primary winner. Henson is the only candidate on the ballot in the heavily Democratic 19th House District, made up of parts of Fairfax and Prince William counties.

In an interview, Little acknowledged her attempts to appear on the ballot failed, since the ballots were printed weeks ago and early voting got underway last Friday. However, she said she intends to continue the lawsuit and keep arguing the state needs a better mechanism to resolve disputes over whether primaries were conducted fairly. Little now identifies as an independent, but said she still supports many Democratic priorities.

“It’s disappointing that the party of inclusion can be so exclusionary,” Little said. “And what they call vetting is actually gatekeeping.”

Sen. Amanda Chase, R-Chesterfield, one of Virginia’s most prominent purveyors of unfounded election fraud claims, explored the idea of running a write-in campaign after losing a suburban Richmond primary battle against former state Sen. Glen Sturtevant. Chase told supporters in a Sept. 13 email she was dropping that plan because write-in campaigns involve “far too much work with little return.” She also floated the possibility of a statewide campaign next year, without identifying a specific office.

In a more politically significant development, Matt Strickland, an anti-establishment conservative who sought the GOP nomination in a Fredericksburg-area Virginia Senate district, is encouraging supporters to write his name on their November ballots despite losing a June primary to Del. Tara Durant, R-Fredericksburg. 

Durant is facing Democrat Joel Griffin and independent Monica Gary in a battleground district being heavily contested by both parties, and the prospect of Strickland drawing conservative votes away from Durant adds another complication for Republicans hoping to win full control of the legislature. Democrats currently have a 22-18 majority in the Senate.

What they call vetting is actually gatekeeping.

– Makya Little

Strickland did not respond to an emailed request for comment Tuesday. He discussed the write-in effort at length in a recent interview on the conservative John Fredericks Radio Show. When Fredericks pressed him for a response to accusations he’s jeopardizing Republicans’ chances in the district, Strickland said, “If a Democrat wins, so be it.”

“The only way that the Republican Party will change is we withhold our vote from them for winning these primaries via corruption,” said Strickland, who also accused Gov. Glenn Youngkin of supporting a “globalist agenda.” Youngkin endorsed Durant in the primary.

Republicans have downplayed Strickland’s impact on the race.

I just don’t think there’s a whole lot of wind beneath their sails, so to speak,” Durant said Tuesday. “You take everything seriously, but you’ve got to focus on those who are on the ballot.”

Griffin, the Democrat who stands to benefit from a split GOP vote, took a different view of Strickland’s role as a potential spoiler.

“We’ve seen a number of voters who are frustrated with the lack of performance from Tara,” he said. “I think there’s a lot of people in the region that do support him.”

Virginia’s sore loser law only prohibits candidates from appearing on the ballot after losing a primary, but candidates can theoretically win if they can educate enough supporters about the need to look past the official list of candidates, fill in the write-in box and spell the name (mostly) correctly. State Del. Nick Freitas, R-Culpeper, pulled off that feat in 2019 after paperwork errors left him off the ballot in his strongly Republican district, but he received a $500,000 donation from a Republican donor to fund the extraordinary outreach effort.

In court filings portraying Little’s lawsuit as legally meritless, attorneys for the state emphasized that Little can technically still win as a write-in candidate under Virginia’s system.

The sore loser law Little is targeting serves a valid democratic purpose, the state argued, by preventing party infighting, minimizing voter confusion and ensuring that primary elections don’t become “meaningless.” Little’s allegations that various Democratic officials tilted the primary against her, the state’s filing contends, have nothing to do with official election functions and the laws that govern them.

You take everything seriously, but you've got to focus on those who are on the ballot.

– Del. Tara Durant

“In a nutshell, plaintiffs complain that some Democrats did not treat Ms. Little fairly,” the state’s filing says. “But such is the stuff of politics. Some of it may not be nice, but plaintiff fails to show why any of it is illegal.”

Little has claimed Democratic leaders in Prince William and Fairfax counties manipulated the primary process by allowing party officials to be involved with other candidates’ campaigns, deleting her social media posts from party pages, canceling a “bilingual voter drive” and steering endorsements to her opponent.

Little, who says she’s representing herself in the lawsuit because no lawyers would take the case, insisted her post-primary efforts are about standing up for the voters in her district.

“It’s bigger than just my campaign. It’s bigger than just this one race. It’s bigger than just this one election cycle,” she said. “This has become a pattern and practice of the parties to control who even has access to the ballot.”

The 2023 primary season has also drawn attention to a possible loophole in the sore loser law.

In a local race in Roanoke County, a candidate dropped out of a Republican contest just days before the June 20 primaries but then filed to run as an independent. That candidate, Tom McCracken, also abandoned his independent run last month, according to WDBJ7.

In a Sept. 14 advisory opinion on a hypothetical scenario that matches what happened in Roanoke County, Attorney General Jason Miyares said that, as written, the law allows primary candidates to avoid triggering the sore loser restriction by dropping out of a primary at the last minute. Even if it occurs after voting has started with the candidate’s name printed on primary ballots, a formal withdrawal from the race doesn’t count as being “defeated” in the primary, Miyares wrote.

Theoretically, Miyares opined, a primary candidate could evade the sore loser law by dropping out “at any point prior to the closing of the polls on the day of the primary election.”

Staff reporter Charlie Paullin contributed to this report.


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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.