Petition against Louise Lucas seeks to do the unprecedented — recall a Virginia lawmaker

A group of Hampton Roads voters filed a petition against powerful state Sen. Louise Lucas last week and triggered something never done before: the potential recall of a Virginia lawmaker.

Experts say this is likely the first time a group of voters has tested the state’s law for a recall trial against a state legislator. At least five political science experts interviewed by The Virginian-Pilot couldn’t remember it happening before.

“Whatever the outcome,” said Soji Akomolafe, chair of the political science department at Norfolk State University, “it’s going to be consequential.”

The attempted ouster pits Lucas against conservative voters in her mostly Democratic and heavily African American district. For more than a year, those critics have collected signatures in an inches-thick petition to force a recall trial, accusing Lucas of misusing her role as an elected official during a June 2020 protest at Portsmouth’s downtown Confederate monument that sparked much political fallout.

Since that protest, a judge dismissed felony charges against Lucas and 18 others — including NAACP leaders, public defenders and a School Board member — stemming from the monument’s vandalism. Portsmouth’s elected prosecutor said the charges weren’t supported by probable cause and asked the judge to throw them out.

Many Democratic leaders and activists have denounced the charges, calling them a racist attempt to intimidate Lucas, the president pro tempore of the Virginia Senate. As the first Black person and first woman to hold that job, she is one of the state’s most influential politicians. In her nearly three decades in office she has been a vociferous critic of her Republican peers and pushed heavily for legislation that has transformed Virginia into one of the most liberal states in the South.

For many supporters, the effort to kick her out of office is just another attempt to remove a powerful Black leader from government, fitting a centuries-long pattern of white Americans weaponizing the legal system to keep control over people of color.

But Nelson Velez, who filed the petition in Chesapeake Circuit Court, said her critics mean to hold her accountable, not target her for her race. Those who signed the petition stepped in where the Portsmouth commonwealth’s attorney and state Democrats “failed,” said Velez, chairman of the Virginia Tea Party.

Nationally, recall elections of state officials rarely lead to removal. And in Virginia, some experts say judges are unlikely to toss a state lawmaker from the job without a clear violation of the law — such as a criminal conviction.

Regardless, the potential ramifications of the case extend beyond the region, and voters, politicians and analysts will have their eye on Hampton Roads as it plays out.

How recalls work

Democratically elected state leaders are rarely the subject of a recall here and across the country.

In Virginia, a petition from voters prompts a trial in Circuit Court to determine whether the state official should be removed.

It’s a judicial process rather than an electoral one, and this is the only state that does it this way, said Karen Hult, a political science professor at Virginia Tech.

Nineteen other states allow for recall elections of officials at the state level, through which voters collect a certain number of petition signatures to force an election. Recall elections are more common at the local rather than state level, with as many as three-fourths of them aimed at removing city council or school board members, according to the National Conference of State Legislatures.

Hampton Roads has seen its share of local recall efforts.

Both times, a city code that allows for a recall election was used — not the state law being cited in Lucas’ case that calls for a trial.

In 2016, a group gathered enough signatures for a recall trial of then-Norfolk Treasurer Anthony Burfoot. But the trial never happened: Burfoot was convicted on federal public corruption and perjury charges, sentenced to six years in prison and removed from office by another judge.

Efforts to remove elected state leaders by recall in the U.S. have been “largely unsuccessful,” according to the National Conference of State Legislatures.

Across the country, petitions to recall state lawmakers have prompted elections only 39 times, according to the NCSL.

Hult said recalls were intended to be a “safety valve” for voters. While recalls historically have been used to address an official’s misdeeds, more recently such efforts have focused on policy, she said. As the nation becomes more and more divided on politics, people may try to use recalls as a way to express disagreement with an elected official, she said.

Under Virginia’s law, which dates to 1975, petitioners seeking to remove an official must gather signatures from registered voters in the district representing at least 10% of votes cast in the last election for that position.

State law outlines numerous reasons why an elected official can be recalled from the job, including for certain criminal convictions. Other reasons include “neglect of duty, misuse of office, or incompetence in the performance of duties,” according to the law.

In the hands of a judge

Stephen Farnsworth, a political science professor at the University of Mary Washington, said Virginia’s recall law seems designed to respond to elected officials convicted of crimes more so than those who’ve “angered a fraction of the voters in their district.”

He said the law is “more problematic” than recall laws in other states that call for elections. Virginia’s process is a state law approved by the legislature rather than one outlined in the state’s constitution. And it doesn’t include a provision giving the elected official a chance to plead their case before the voters, Farnsworth said.

For the recall to be in the hands of one judge, it “doesn’t strike me as a recipe for respecting the will of the voters,” he said.

“This is a weapon that is both too easy to fire and unlikely to hit its target,” Farnsworth said.

John McGlennon, a professor of government and public policy at the College of William & Mary, said there’s some ambiguity in Virginia’s law as to whether state courts have the authority to remove state officials.

Both McGlennon and Farnsworth said the courts are unlikely to intervene in a case if they don’t have a clear indication of whether an official violated the law.

Another potential conflict: Virginia judges are appointed by the state legislature, and it’s unclear whether a judge appointed during Lucas’ 29 years in the Senate would feel comfortable hearing her case.

These complications are among the reasons judges may hesitate to tread in this area, Farnsworth said, particularly without a criminal conviction.

“This creates an opportunity for generating more partisan ill-will, but it’s not likely to lead to judges tossing elected officials out of office,” Farnsworth said.

Ramifications and fallout

The case against Lucas could set political and legal precedent.

If it succeeds in court, Akomolafe said he wouldn’t be surprised to see more voters trying to remove their state delegates and senators by petition.

It’s a “pretty unusual response to political disagreements,” Farnsworth said, “but it may be the shape of things to come.” Just about any district could find enough voters who disagree with a sitting politician.

“If this provision ends up being weaponized along these lines, it won’t change who’s in office, but it certainly will increase partisan hostility in Virginia to an even greater degree.”

If the case advances, Farnsworth said it’ll likely be “litigated to death” because of a lack of prior cases.

Hult said the case could have a “chilling effect” on state officials, who may be less likely to voice certain opinions out of concern voters might try to recall them. It could also have the opposite effect, she said, making politicians more responsive to differing political perspectives in their district.

What concerns Hult as an observer: Lucas’ recall case is one more sign that people are becoming increasingly divided by politics.

The case comes right before a special session of the General Assembly in August and a statewide election in November. Republican and Democratic candidates may use the case to further mobilize their voters, she said. “You can imagine both parties really paying attention and using it for their own benefit.”

Said Akomolafe, executive director of NSU’s Center for African American Public Policy, “This is a case to watch.”