Virginia elections board declines to help Democrat bounced from ballot over party’s typo
Board takes no action after appeal from Southside Senate candidate Trudy Berry
by Graham Moomaw
(Editor’s Note: This story originally appeared in the Virginia Mercury. We reprint it today following the interest generated by our own recent reporting over concerns about signature dates on petitions of qualified voters collected Spotsylvania County. – Martin Davis)
The lack of a “.gov” in a Democratic party official’s attempted email to the Virginia Department of Elections will apparently leave Democrats without a candidate in a Republican-leaning state Senate district this year.
On Tuesday, the State Board of Elections seemed to ignore an 11th-hour appeal from a lawyer representing Trudy Berry, a Democrat who thought she had done everything necessary to appear on the ballot this fall challenging Sen. Frank Ruff, R-Mecklenburg, in Southside Virginia’s 9th Senate District.
Despite the Democratic Party of Virginia formally backing Berry and calling her its “duly chosen nominee,” the board took no action to add her to the state’s list of certified candidates. Board Chairman John O’ Bannon, a former Republican delegate, briefly addressed the issue without making a definitive statement that the board was rejecting her request.
“I will just remind everybody that at the very first meeting this year of the state board we admonished every candidate to be sure and close the loop and don’t accept that things went through,” O’Bannon said.
In a written memo to the board, Berry’s attorney said local Democratic Party officials assured her on April 3 that all the necessary paperwork for her candidacy would be filed. Berry didn’t learn about the party official’s mistake until July 13, according to her attorney, well past the April 11 deadline for the document to be filed.
I will just remind everybody that at the very first meeting this year of the state board we admonished every candidate to be sure and close the loop and don’t accept that things went through.
– Board of Elections Chair John O’Bannon
No other board members spoke up on the matter. After hearing from Berry’s backers, the board moved on with its meeting agenda, didn’t raise the issue again and gave no indication it would take up the issue at a future meeting. The lack of action means Berry will remain off the state’s list of official General Assembly candidates and won’t have her name included on ballots being prepared for the start of early voting in a little more than a month.
Jasmine Lipscomb, a Democrat hoping to run against Del. Danny Marshall, R-Danville, also appeared before the board to ask officials to put her name on the ballot despite her feud with party officials over her failure to pay a $500 filing fee and meet other filing conditions set by local Democratic organizers. Board members did not respond after Lipscomb, the only Democrat who stepped forward in her Southside Virginia district, said she “still would love to run if that is possible.”
The paperwork dilemma involving Berry, a U.S. Air Force veteran who lives in Lunenburg County, was the latest of several recent controversies in which local party officials failed to file paperwork that doesn’t come from candidates themselves.
Berry was the only Democratic candidate who filed all the necessary paperwork in her district, which under normal circumstances would have automatically made her the Democratic nominee. However, Clem Oliver, a Danville Democratic leader who passed away last month after battling cancer, mistyped an email address when she attempted to file a key piece of paperwork with the state officially declaring Berry the Democratic candidate in a district based largely in the city of Danville and Pittsylvania, Halifax and Mecklenburg counties.
Without action by the board, said Berry’s attorney Liz Burneson, more than 150,000 voters in the district will see only one name on their state Senate ballot.
“Because of a three letter typo made by a woman who was gravely ill,” Burneson said. “That’s really an unconscionable result. And this board has the authority to avoid this unconscionable result.”
The state Democratic Party — which has come under fire from Berry and some activists for not catching the issue sooner or having a more rigorous system of ensuring its prospective candidates make the ballot — also officially appealed to the state to let Berry appear on the ballot.
Because of a three letter typo made by a woman who was gravely ill. That’s really an unconscionable result. And this board has the authority to avoid this unconscionable result.
– Liz Burneson, attorney for Trudy Berry
Shyam Raman, DPVA’s executive director, appeared at Tuesday’s meeting to read the board a letter from party Chairwoman Susan Swecker declaring that, from the party’s perspective, Berry was a valid candidate who shouldn’t be denied ballot access due to a “typographical error.”
“We do not know if Ms. Oliver received a bounceback or automated response after omitting the ‘.gov’ from the Department of Elections email address,” Raman said.
Berry’s supporters have pointed out that the elections board recently gave other candidates wiggle room for party mistakes outside of their direct control. In 2019, the board allowed House Majority Leader Terry Kilgore, R-Scott, and Del. Clint Jenkins, D-Suffolk, to appear on the ballot after similar paperwork flubs by local party officials. In 2021, Del. Dave LaRock, R-Loudoun, received similarly lenient treatment from the board.
The five-member elections board is currently controlled by a Republican majority because state law dictates that working control goes to the party that won the last gubernatorial election. The decisions made in 2019 and 2021 occurred under Democratic-controlled boards.
Replying to Raman, O’Bannon said the board decides paperwork appeals on a case by case basis.
“Some have been approved and some have not been approved,” O’Bannon said. “And they were bipartisan. It was both parties involved in that.”
O’Bannon indicated he and other board members were interested in taking DPVA up on an offer to discuss “some things that we can do tangible to reduce the likelihood of this happening in the future.”
Berry’s legal memo argues that, under state law, she should’ve been the Democratic nominee regardless of party certification because she was the only contender for the spot and met all other candidacy requirements within her control. The document also suggests the “extreme remedy” of rejecting her candidacy over a minor typo is so imbalanced it could run afoul of First Amendment protections dealing with ballot access.
Internal Department of Elections emails obtained by Josh Stanfield, a left-leaning Virginia activist who specializes in Freedom of Information Act requests, show that DPVA staff contacted the state to discuss the issue last month.
“What do we want to do?” Elections and Registration Services Director Paul G. Saunders III wrote in a July 13 email to Elections Commissioner Susan Beals. “Technically, we didn’t receive it by the deadline but they did attempt to send it by the deadline.”
In an email Tuesday afternoon, Berry said she had not yet decided whether she will take legal action.
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Susan Beals was as an aide for election denier Amanda Chase and was named election commissioner by MAGA Glenn Youngkin in 2022.
That is why those candidates aren’t seeing much help like there was in the past.
That’s precisely it — has nothing to do with legalism or a too strict reading of the law. Just an opportunity to knife the opposition rather than adhere to either process or voter intent.
I doubt this will survive long in the courts. The 2007 Marty Williams case puts the law overwhelmingly on voter intent, not the scruples of bean counters.