Virginia Beach must take action on ward-based election system or risk lawsuit, city attorney warns

VIRGINIA BEACH — The city could face renewed litigation in federal court if it chooses not to stick with the current ward-based election system, according to the city’s legal team.

“The barriers to any system other than the 10-1 are strong, if not insurmountable,” Deputy City Attorney Christopher Boynton told the City Council on Tuesday.

Citing a conversation at the end of May with a federal court judge and plaintiffs in a previous election lawsuit against the city, Boynton said Virginia Beach needs to make a move soon. He also said if the city doesn’t permanently adopt the ward system, it could face the possibility of not having City Council elections in 2024.

“The court expressed extreme frustration with the city’s pace of considering the election system to this point,” Boynton told council members. “It made clear that it believed only the 10-1 system with these three minority opportunity districts is sufficient to overcome the Voting Rights Act issues.”

The update comes as Virginia Beach officials are mulling what to do about the city’s election system. The city was sued over its previous at-large voting system, which allowed all voters across the city to elect at-large and district representatives, and a federal judge deemed it illegal because it diluted minority voting power.

The ward-based system, in which only residents of a ward are allowed to vote for that representative, was implemented by the court for the 2022 elections. But for future elections, the 10-1 ward system would need to be written into city code and ratified by the General Assembly, Boynton said. If the city attempted to go through with ward-based elections for its previous configuration of seven wards and three at-large elections (plus the mayor), it could be subject litigation, he warned.

Boynton recommended the council hold a public hearing on adopting the ward system and vote on it when members return from summer break in August, “to not run afoul of the court’s view of the decision timeline.”

The next step would then be for the city to seek 2024 General Assembly approval through a charter change which requires a two-thirds majority in both houses plus the governor’s signature, or propose a new state law to harmonize with the redistricting ordinance, Boynton said.

In 2017, Latasha Holloway and Georgia Allen filed a lawsuit against the city, contending that Virginia Beach’s election system violated the federal Voting Rights Act. In 2021, a district court judge ruled in favor of the plaintiffs, and the court imposed a 10-1 system for Virginia Beach while appointing a special master to draw new voting district maps.

The 10-1 ward system, with three minority opportunity districts (Districts 4, 7 and 10), where minority voters are the majority, was used in November.

The city had appealed the rulings, but the case was declared moot after the General Assembly approved legislation that bans localities from allowing at-large voting for representatives in wards that have a ward-based resident requirement. The same General Assembly also adopted the Virginia Voting Rights Act, which changed the view of at-large districts statewide, where there is racial polarization in voting populations, Boynton said.

The city is not presently under a federal court order imposing a system, but the charter has been changed by state law, and the Holloway case could still be amended and brought back if the city changes the election system, Boynton said.

“Even without the Holloway case, as if it had never happened, you no longer have your charter system,” he said.

The City Council recently heard results of a public input survey on the election system, which concluded residents support a 10-1 system, and that more than 60% of respondents wanted a referendum question about the election system on the November ballot.

But the plaintiffs reject the idea of a referendum because “a racially-polarized electorate cannot fairly choose an election system,” according to Boynton.

The U.S. Court of Appeals for the Fourth Circuit remanded the Holloway case to the trial judge to receive amended challenges or claims by the plaintiffs, if they feel the city is moving down a path that is inconsistent with the Voting Rights Act, Boynton said.

If the city pursues another path, the judge warned that there won’t be an election in 2024, he said.

“The court is clearly watching everything we do,” Boynton said.

Despite the attorney’s remarks, Councilwoman Barbara Henley renewed her support for a referendum.

“I have some very strong feelings that I have expressed much prior to this about this concept of not allowing the people to vote on this issue,” Henley said. “I think the very essence of voting rights is the right of our citizens to vote in elections.

“They have a right to elect their representatives and the right to vote on issues of importance to the community,” she continued. “To circumvent the right of the people to have elections in my opinion is the very height of a violation of voting rights.”

Henley then laid out the history of elections in Virginia Beach, and how the relationship between the urban, suburban and rural communities played a role in establishing the at-large system.

Virginia Beach used to have four members including the mayor who were elected at large. Those four could live anywhere in the city and were elected by residents across the city. The remaining seven members represented districts but were elected by the population at large.

That system had been in place since 1967 after the merger of Virginia Beach and Princess Anne County. The Virginia Beach School Board is elected by the same method as the City Council, except for the chair, who is elected by members of the body.

Councilwoman Jennifer Rouse said it’s time for a change, noting that the last election produced the most diverse city council in Virginia Beach history.

“It’s uncomfortable, but the history of Virginia Beach is not a history that has been welcoming to Black people,” Rouse said. “If we keep doing what we have been doing, we will keep getting what we’ve been getting, and that is a council that a number of citizens have said are not reflective of the makeup of the city.”

Stacy Parker, 757-222-5125, stacy.parker@pilotonline.com