Special Election for 39th District

Special Election for 39th District

July 25, 2002

It took a lawsuit and a senator's resignation, but the people in the 39th District — which includes the Clifton and Newgate precincts — will now get to vote for a senator in their new district. And as a result, they'll be represented in the next session of the General Assembly.

"Gov. Warner's office has provided my clients assurance that he'll call for a special election in the 39th by this Friday," said attorney Lee Goodman, who represented the five people filing the lawsuit. "My clients, having achieved their objective — a right to vote and representation in the Virginia Senate — are declaring victory."

Warner set Nov. 5 as the election date. But until Monday evening, things were still pretty dicey, and anger and unrest were running rampant in the 39th. It all began with last year's redistricting. Nine precincts — five in Fairfax County (Clifton, Newgate, Fairfax Station, Woodyard and Silverbrook) and four in Prince William — were carved out of the old 37th Senate District and plunked into the newly drawn 39th.

Then came Sen. Warren E. Barry (R-37th) resignation, prompting a special election to replace him. Democrat Cathy Belter and Republican Ken Cuccinelli will face off Aug. 6. But the election will only be held in the new 37th, so all the residents of the nine precincts — which used to be in the old 37th — are barred from voting.

Further complicating the issue, according to state law, new senate districts take effect immediately; so in November 2001, the House candidates all ran in their new districts. But the senators were in mid-term — not slated to run again until November 2003.

Consequently, people living in the nine precincts would have no senate representation until then, when they'd be allowed to vote in that election. "I live in Clifton — one of those precincts," said Del. James K. "Jay" O'Brien (R-40th). "I wouldn't have a senator." Calling them "orphan citizens," he said, "The situation these precincts represents is so egregious that the state is forced to act on it."

Actually, though, in this case, the state got a nudge — a strong one. On June 26 in U.S. District Court in Alexandria, five residents of these precincts filed a civil suit against the governor, the State Board of Elections and the electoral boards of Fairfax and Prince William counties. The filers were Bill Jasien of Clifton, Bruno Maestri of Little Rocky Run, John Haddow of Fairfax Station and David Pace and James Arritt, both of Woodbridge.

"[The suit] said that, by having the election in the new 37th — without some remedy for the orphan precincts — 50,000 people wouldn't have a senator for 19 months," explained O'Brien. "That would violate the 'one man, one vote' law and protections in the U.S. Constitution."

He said it would be 19 months because the new 39th-District senator elected in 2003 wouldn't take office until January 2004. The lawsuit suggested to the court three possible remedies for the nine precincts' dilemma:

1. Stop the election in the new 37th and have it, instead, in the old 37th; 2. Proceed with the election in the new 37th, but also hold one in the new 39th so the orphan precincts would be represented by a senator for a year, until the 2003 election; or 3. have the current 39th-District senator, Madison E. Marye — who lives in Shawsville, south of Roanoke — move to Northern Virginia.

"But he already said he wouldn't do that," said O'Brien. "And he agrees with the lawsuit." (O'Brien favored the second alternative).

Haddow said he took the whole thing seriously enough to put his name on the suit. "We would not be able to vote for [Sen.] Barry's replacement because we're in the new district," he said. "And nobody would represent us in the state senate, next session, when there are going to be some hot issues affecting Northern Virginia. So we filed the suit saying that we'd been disenfranchised. I think we have a pretty compelling argument."

Added attorney Goodman: "Because of its population growth, Northern Virginia got a new senate seat, the 39th, in the redistricting. It deserves its new representation and new senator immediately."

Five days after the suit was filed, Marye announced his intention to retire but, when he later waffled, his name was added to the suit. Then Monday afternoon, Warner's press secretary, Ellen Qualls, said Marye sent a letter to Warner, resigning effective Aug. 1 — paving the way for a 39th-District special election.

"I'm pleased that he's done the right thing," said Goodman. "The lawsuit forced the Commonwealth, Gov. Warner and Sen. Marye to take action. [We'll] withdraw our lawsuit, this week. The citizens in the new 39th owe [the five lawsuit-filers] a great debt of gratitude. They stood up when no one else would."