Revised October 13, 2018
As Tropical Storm Michael was making its entrance into Hampton Roads yesterday evening, the Martin Luther King, Jr., Leadership Steering Committee (MLKLSC) gathered for a meeting. Based on subsequent social media postings from some who attended, the political action committee appears to have amended its list of endorsed standard bearers. Previously, MLKLSC had announced endorsements of Candidates Paul Battle and Shannon Glover, leaving one contested seat unclaimed. Last night, though, the group added Candidate Mark Whitaker, who recently received a suspension from city council due to an adverse decision in a judicial proceeding. The suspension also resulted in his disqualification as a candidate for reelection this year.The Virginia Code section which governs these suspensions is § 24.2-236, Suspension from office pending hearing and appeal. Enacted in 2017 in response to the refusal of former Norfolk City Treasurer Anthony Burfoot to step down from his elected position following his initial criminal conviction, it states, in part, “Any officer convicted of a felony under the laws of any state or the United States shall be automatically suspended upon such conviction, regardless of any appeals, pleadings, delays, or motions. The court may, in its discretion, continue the suspension until the matter is finally disposed of in the Supreme Court or otherwise.” On imposition of sentence in the proceeding against CM Whitaker, the Portsmouth Register of Voters posted notice of his disqualification as a candidate.
Sometime after publication of the notice, a theory began to evolve about how to restore CM Whitaker to a position on city council in the near term. A social media posting cited Virginia Code sections that underpin that theory: §§ 24.2-673, 24.2-226, and 24.2-500. The latter two are rather unexceptional provisions, referencing special elections and candidate qualifications, respectively. It is the first section that appears to be the lynchpin of the argument.
Two disclaimers are in order at this point. First, PCW has no attorney on staff, so our interpretations of legal language are no better than those of any nonlawyer. Second, the author of this piece has a greater personal stake in the outcome of the city council election than many other citizens, and that factor could detract from his objectivity.
Title 24.2-673 states, in part, “in all elections for the choice of any officer, unless it is otherwise expressly provided, the person having the highest number of votes for any office shall be deemed to have been elected to such office and shall receive the certificate of election.” In accordance with the previously referenced theory, because former CM Whitaker’s name is already on the ballot and notwithstanding his official disqualification, if he is among the top three voter getters on November 6, the candidate who comes in fourth will not be declared elected. Instead, city council will have the opportunity to appoint an interim council member and set a date for a special election to fill the vacancy. By the time of that election, the proponents believe, former CM Whitaker’s civil rights will be restored and his suspension from seeking office will be removed.
Everything could play out in accordance with the theory. Then, again, it might not. The endorsement of the former CM by MLKLSC does not guarantee his getting the necessary votes to get past the first hurdle. Decidedly, the PAC is an influential force in our city, but whether it can motivate enough voters to sweep three seats in the local election is untested. If former CM Whitaker falls short of third place by just a single vote, the strategy unravels. The cost of that could be the difference between having a majority on council favorable to MLKLSC positions or being in the minority again for two more years.
Even if the strategy works out in the first stage, other obstacles remain. First, under § 24.2-228, “within 45 days of the office becoming vacant, [council] may appoint a qualified voter . . . to fill the vacancy. If a majority of the remaining members of the body or board cannot agree, or do not act, the judges of the circuit court of the county or city may make the appointment.” Because of former CM Whitaker’s suspension, we believe that the 45-day clock is already ticking, and if council does not act within the deadline, the judges of the circuit court are empowered to act in their stead. The code further stipulates that “the person so appointed shall hold office only until the qualified voters fill the vacancy by special election”. In accordance with § 24.2-682, which sets times for special elections, the plebiscite to choose a replacement could be deferred as long as the next general election in November 2019. The former CM could, therefore, be sitting on the sidelines for over a year before he has the opportunity for reelection.
Whenever the special election occurs, former CM Whitaker is not assured of victory. Unlike Interim CM Ray Smith, the next interim appointee may choose to run for the seat in her/his own right. Depending on the quality of her/his performance on the job, s/he might be a formidable competitor. Another consideration is that elections held outside the usual primary and general election windows have had historically low turnout. Candidate Whitaker, unfortunately, has offended many residents across the community during his years in public life who they might be motivated to turn out in force to vote against him. Furthermore, if the special election coincides with the general, turnout in 2019 for General Assembly races as the main draw, may not be as large as this year’s. Whether his supporters are numerous and ardent enough to show up at the polls after the present furor dies down is less than certain.
Lastly, the interactions of the various pieces of the law have not been tested in any court. Since the date § 24.2-236 took effect, no one has challenged or defended its provisions in a legal proceeding. To assert that it would have no effect on how § 24.2-673 is applied is counterintuitive. A court could find that the suspension provision is the equivalent of removing the disqualified candidate’s name from the ballot, whereby the votes s/he received would be invalid, just as write-in votes for Donald Duck, or Donald Trump, as city council candidate would be. Until the law undergoes judicial scrutiny, a definitive call is not possible.
So, whatever the outcome of this election appears to be on November 6 once officials tally all the votes, much may hang in the balance. Unlike Tropical Storm Michael, which came, made its mess, and cleared out in short order, this political storm and its mess will likely be around for the long haul.