Procedures & Remedies (VA)
Virginia Procedure & Remedies Tutorial
When deciding election law cases, the judiciary encounters procedural obstacles that are largely absent from other strains of legal dispute. For example, courts deciding election cases often must render decisions under pressing time constraints as democratic outcomes wait in limbo. These temporal pressures necessitate time-sensitive procedural mechanisms not typically found in other areas of litigation. Further, judicial immersion in electoral matters can embroil courts in inherently partisan processes that are traditionally within the purview of the elected branches. The judiciary’s entanglement in the “political thicket” inevitably stokes anxieties over judicial neutrality, and can seem incongruent with the constitutional norms of federalism and separation of powers.
In response to these procedural difficulties, both legislatures and the judiciary have, in certain instances, tweaked procedural rules and doctrine to fit the electoral context. These responses range from statutory expedition of certain election law cases to adjustment of pleading rules. This tutorial reviews procedural distinction at both the federal level and in Virginia developed to confront challenges posed by certain election cases. Part I looks at Voter Registration claims; Part II concerns Ballot Access laws; Part III examines Election Administration; Part IV centers on Redistricting litigation; Part V focuses on Election Contests; and Part VI reviews Campaign Finance enforcement procedure.
Readers should bear in mind that this tutorial is not intended as an exhaustive assessment of civil procedure in relation to the myriad topics within the umbrella of election law. Many important components of civil procedure are not covered. Instead, this tutorial aims to highlight instances when election law procedure deviates from rules and standards applicable in other areas
Part I. Voter Registration
In the early 1990s, Congress passed the National Voter Registration Act (“NVRA”) to bolster participation in federal elections. To promote expansion of voter registration lists, the NVRA requires states to implement processes allowing citizens to register to vote when applying for a driver’s license or government services, or through a mail-in application. The Justice Department is authorized to bring civil suits in federal court against states and their political subunits to compel compliance with the NVRA. Knowing and wilful violations of the act are subject to criminal prosecution, and applicable penalties include fines and up to five years imprisonment.
The NVRA also authorizes private actions, though persons generally must try to resolve their grievance through administrative channels prior to filing suit, unless the violation occurs in the thirty days before a federal election. Specifically, the NVRA requires that the aggrieved person notify a state’s chief election officer of an alleged violation and afford election officials time to remedy the grievance. If state officials do not correct the violation in 90 days, or twenty days if within 120 days of a federal election, the complainant may initiate a civil action in federal district court.
Rather than resort to administrative review, Virginia provides aggrieved persons direct access to the courts to challenge the denial or cancellation of voter registration. In Virginia, a person whose registration is denied or cancelled by a general registrar can appeal to the circuit court within ten days of the denial or cancellation. Voter registration suits are expedited and “take precedence over all other business of the court.” If the circuit court affirms the general registrar’s determination, the petitioner has the right to appeal directly to the Supreme Court of Virginia. The appeal is placed on the court’s privileged docket, and the court must hear it during its next session.
Part II. Ballot Access
The Elections Clause of the U.S. Constitution empowers states to regulate the time, place, and manner of federal elections, and a significant component of states’ electoral authority is the power to set ballot access qualifications. Consequently, both candidates and parties have attacked the constitutionality of state ballot access laws, contending that ballot qualifications impermissibly burden associational and voting rights protected by the First and Fourteenth Amendments.
When considering constitutional challenges to ballot qualifications, courts balance “the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments” against “the precise interests put forward by the State as justifications for the burden.” Courts particularly focus on the degree to which ballot access statutes restrict political opportunity. If a statute’s restrictive effect on ballot access is severe, the court will uphold the law only if it is “narrowly drawn to advance a state interest of compelling importance.” Alternatively, “reasonable, nondiscriminatory restrictions” are typically upheld as furthering important state interests in avoiding voter confusion over overcrowded ballots and “protect[ing] the integrity of its political processes from frivolous or fraudulent candidacies.” In general, courts uphold ballot access laws requiring a candidate to collect petition signatures equal to some modest percentage of the electorate, prohibitions on multiparty nominations, and sore loser statutes. Conversely, courts have invalidated ballot laws demanding excessively high filing fees or an unreasonably large number of petition signatures.
States have considerable latitude in setting ballot qualifications for state and local elections, and specific requirements often vary with the office sought. In Virginia, a person seeking nomination for statewide office through a primary must file various qualifying documents with the State Board of Elections, including a declaration of candidacy accompanied by a petition signed by a specified number of qualified voters; primary candidates for other offices file directly with the party chair. The exact number of signatures needed depends on the office sought, though statewide candidates must gather at least 10,000 signatures, including 400 from each of Virginia’s congressional districts.
Independent candidates for statewide or congressional office file qualifying documents, including petitions, with the State Board; independents seeking other offices file with the general registrar where they reside. If the State Board of Elections or an electoral board rules that a petition does not meet the minimum signature requirements, the candidate can appeal that determination with the State Board or electoral board within five days. The State Board or electoral board must conduct a hearing on the the appeal within five days, and its decision is final and not subject to judicial review.
Part III. Election Administration
In the wake of the 2000 presidential election, Congress passed the Help America Vote Act (“HAVA”) to “establish minimum election administration standards for States and units of local government responsible for the administration of federal elections.” Among its mandates, HAVA compels states to establish procedures for provisional voting; upgrade voting equipment and replace punch card and level voting systems; create electronic voter registration databases; and implement voter identification standards for first time voters. The Act also created the Election Assistance Commission (“EAC”), which disperses federal funds to states and generally assists in furthering HAVA’s aims.
HAVA has two enforcement mechanisms. First, the U.S. Attorney General’s office can bring civil actions against states and localities in federal district court to compel compliance with HAVA. Second, while HAVA does not expressly allow private actions, the Act obliges states to formulate administrative complaint procedures for certain electoral grievances. As part of HAVA’s mandates, states must make a final determination regarding a complaint within ninety days, or else undertake alternative dispute resolution to achieve resolution.
While HAVA does not create an explicit private right of action, at least one federal appellate court has held that it grants a federal right to cast a provisional ballot that is enforceable against state officials through 42 U.S.C. § 1983. On the other hand, the Supreme Court largely foreclosed the argument that HAVA’s voter registration provisions provide a private right of action in Brunner v. Ohio Republican Party. The Brunner decision reflects the federal judiciary’s general hesitancy to recognize private rights of action conferred by HAVA.
Virginia does not catalogue its complaint procedure for HAVA violations under its election code. Instead, the process for filing HAVA complaints is outlined in Virginia’s administrative code. The relevant regulation states that written complaints alleging HAVA violations are filed with the State Board, and the commissioner or deputy commissioner must review and respond to such complaints.
Part IV. Redistricting
Actions challenging the constitutionality of federal and state redistricting plans in federal court follow a distinct jurisdictional sequence in which they are initially decided by a specially convened three-judge district court and directly appealed to the Supreme Court. Upon the filing of a constitutional challenge to a redistricting plan in federal court, a district court judge initially determines, on the basis of the claim’s pleadings, whether the action necessitates the convening of a three-judge district court. If the district judge determines a three-judge court is merited, the chief judge of the relevant circuit convenes a three-judge panel, which must include at least one circuit court judge as well as the district judge who made the preliminary ruling on the three-judge court’s necessity. The three-judge district court practically functions like a typical district court, conducting a trial on the merits and issuing both factual findings and legal conclusions. The Supreme Court has jurisdiction for appeals from the three-judge district court, and the Court cannot decline the appeal. The Court may summarily affirm or reverse, or engage in a full hearing on the merits of the case.
A resident of a Virginia locality has the right to a mandamus action against a local governing body to compel reapportionment where the local body has failed to do so as required by law. If the local body has reapportioned, judicial review is appropriate only to review allegations of malapportionment in the plan. Circuit courts review a reapportionment scheme to determine its compliance with constitutional principles.
Part V. Election Contests
An unsuccessful congressional candidate seeking to contest the election of a member of the House of Representatives must file notice of intent to contest with the Clerk of the House within thirty days after electoral results are announced. The Committee on House Administration reviews the contest action, and then issues a resolution with recommendations to the full House. Possible recommendations include dismissing the challenge, declaring a winner, or ordering a new election. The full House votes to adopt the committee’s resolution, and a majority vote is necessary. The House can order a recount if the contestant is able to demonstrate that he has exhausted available corrective options through the relevant state court system. Throughout the proceedings, the burden is on the contestant “to prove that the election results entitle him to the contestee’s seat.”
In Virginia, proceedings to contest primaries for the U.S. House of Representatives or General Assembly, as well as local general election contests, are heard by the circuit court for the locality in which the challenged candidate resides. The contest proceedings are before a special court composed of the relevant circuit’s chief judge and two circuit judges from other jurisdictions appointed by the Chief Justice of the Virginia Supreme Court. Election contest proceedings for presidential electors, U.S. Senate primaries, or statewide primaries are before the Circuit Court of the City of Richmond. A special court consisting of the Richmond circuit’s chief judge and two circuit judges from other localities, appointed by the Chief Justice of the Supreme Court of Virginia, preside over the contest. The contest proceedings take precedence over all other matters, and the court must decide the contest “as soon as possible.” The prevailing party is entitled to a certificate of election; alternatively, circuit courts may void an election if they determine it was invalid. As in other states, the Virginia legislature has jurisdiction over general election or special election contests for the House of Delegates or Virginia Senate.
Part VI. Campaign Finance
Actions contesting the constitutionality of federal campaign finance laws chart a distinct jurisdictional path in the federal court system. For constitutional challenges to the Bipartisan Campaign Reform Act (“BCRA”), a specially appointed three-judge district court, consisting of at least one circuit court judge, initially hears the case and makes factual and legal findings. Available remedies include declaratory and injunctive relief. Litigants can appeal the district court’s decision to the Supreme Court within ten days, and the Court cannot decline the appeal. Moreover, both the district court and the Supreme Court must “advance on the docket and  expedite to the greatest extent the disposition of the action and appeal.”
Challenges to FECA’s constitutionality similarly follow a special course through the federal courts. A federal district court first reviews the challenge and certifies constitutional questions to the relevant circuit court. The en banc circuit court then rules on the constitutionality of the certified questions using a de novo standard of review. As originally enacted, FECA obligated mandatory Supreme Court review of the circuit court decision, but Congress subsequently eliminated this requirement. Accordingly, the Court now has discretion to review the circuit court’s decision on certiorari.
If a district court only certifies some of a plaintiff’s constitutional questions and dismisses others as frivolous, the plaintiff can appeal such dismissal to a three-judge circuit court panel. The three-judge panel then decides whether the district court abused its discretion in dismissing some of the plaintiff’s constitutional claims. An upshot of this process is the potential for parallel proceedings within the circuit, with the en banc court considering the certified constitutional questions and a smaller panel simultaneously reviewing the dismissal.  Like the special jurisdictional track for other election case varieties, FECA’s unique procedure helps to expedite constitutional challenges to the Act. However, with a notable recent exception, litigation invoking this process is relatively infrequent.
In Virginia, campaign finance violations are addressed by the Commissioner of Elections or the general registrar, depending on the office involved. The Commissioner or registrar may impose civil penalties and seek enforcement action by the Commonwealth’s attorney for noncompliance exceeding 120 days. A person subject to a civil penalty may appeal to the full State Board of Elections. Further, the Commissioner or general registrar may refer a matter for criminal investigation by the Commonwealth’s attorney or Attorney General of Virginia. If the Commonwealth’s attorney declines to prosecute, he may return the matter to the Commissioner or general registrar to determine civil penalties.
 The quintessential modern example of a court decision dictating a democratic outcome is Bush v. Gore, 531 U.S. 98 (2000), where the Supreme Court’s holding ultimately determined the 2000 presidential election.
 The federal constitution effectively divides regulatory authority over federal elections between the states and Congress. See U.S. Const. art. I, §4, cl. 1.
 52 U.S.C. 20501(b) (“The purposes of this chapter are . . . to establish procedures that will increase the number of eligible citizens who register to vote in elections for Federal office…”.)
 52 U.S.C. § 20503.
 52 U.S.C. §20510.
 52 U.S.C. § 20511.
 52 U.S.C. §20510. If within thirty days of a federal election, a person can immediately bring a civil action to enforce the NVRA’s mandates.
 52 U.S.C. § 20510.
 Va. Code §§24.2-422, 24.2-430.
 Va. Code §24.2-422.
 Va. Code §§24.2-422, 433.
 Va. Code §24.2-433.
 U.S. Const. art I. §4 cl. 1.
 Storer v. Brown, 415 U.S. 724, 730 (1974).
 Anderson v. Celebrezze, 460 U.S. 780, 789 (1983).
 Lubin v. Panish, 415 U.S. 709, 716 (1974).
 Burdick v. Takushi, 504 U.S. 428, 434 (1992) (quoting Norman v. Reed, 502 U.S. 279, 289 (1992)).
 Bullock v. Carter, 405 U.S. 134, 145 (1972).
 Jenness v. Fortson, 403 U.S. 431, 442 (1971).
 Timmons v. Twin Cities Area New Party, 520 U.S. 351 (1997).
 South Carolina Green Party v. South Carolina State Election Comm’n, 612 F.3d 752 (4th Cir. 2010).
 Bullock v. Carter, 405 U.S. 134 (1972).
 Norman v. Reed, 502 U.S. 279 (1992).
 Va. Code 24.2-521.
 Va. Code 24.2-506; 543.
 Help America Vote Act of 2002, PL 107-252 (2002).
 Leonard M. Shambon, Implementing the Help America Vote Act, 3 Election L.J. 424 (2004).
 Id. at 428-29.
 52 U.S.C. §21111.
 52 U.S.C. §21112.
 52 U.S.C. §21112.
 Sandusky Cnty. Democratic Party v. Blackwell, 387 F.3d 565, 572 (6th Cir. 2004).
 555 U.S. 5 (2008).
 See Daniel P. Tokaji, HAVA in Court: A Summary and Analysis of Litigation, 12 Election L.J. 203 (2013).
 1 Va. Admin. Code 20-20-80.
 28 U.S.C. § 2284 (“A district court of three judges shall be convened when otherwise required by Act of Congress, or when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.”).
 Joshua A. Doulgas, The Procedure of Election Law in Federal Courts, 2011 Utah L. Rev. 433, 455 (2011).
 BCRA and VRA Section 5 challenges must be filed in the U.S. District Court for the District of Columbia.
 28 U.S.C. § 2284(b)(1); Armour v. Ohio, 925 F.3d 987, 989 (6th Cir. 1991) (“[T]he sufficiency of the complaint for three-judge jurisdictional purposes must be determined by the claims stated in the complaint and not by the way the facts turn out.”).
 28 U.S.C. § 2284.
 Douglas, supra note 37, at 455-56.
 Va. Code §24.2-304.4.
 2 U.S.C. §383 et seq.
 Va. Code §24.2-806.
 Va. Code §24.2-805.
 Va. Code §24.2-810.
 Va. Code §24.2-811.
 Va Code §24.2-812.
 Va. Code §24.2-803.
 52 U.S.C. § 30110 note.
 52 U.S.C. §30110 note.
 52 U.S.C. §30110 note.
 52 U.S.C. §30110 note.
 52 U.S.C. § 30110.
 Douglas, supra note 37, at 472.
 Id. at 469.
 Id. at 471-72.
 Id. at 471.
 Va. Code §24.2-104; 24.2-946.3.