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Lucas recall petition heads to court

Portsmouth resident Charlotte Briglin and a group of likeminded voters filed a petition in Chesapeake’s Circuit Court June 22 seeking to recall state Sen. L. Louise Lucas from her elected office.

Lucas, a Democrat, represents Virginia’s 18th District and serves as the Senate’s president pro tempore. The district includes parts of the counties of Isle of Wight, Southampton and Surry, as well as parts of the cities of Franklin and Suffolk.

The petition, Briglin confirmed, is the same one Virginia Beach-based attorney and gun store owner Timothy Anderson started last year following the senator’s appearance at a June 2020 protest at Portsmouth’s now-removed Confederate monument.

The protest began as a peaceful demonstration but escalated after Portsmouth police officers arrested the city’s NAACP president and vice president for allegedly trespassing on the monument — charges that were later dismissed. Lucas arrived on scene shortly after the arrests and was caught on camera telling the officers that some of the protesters were planning to “put some paint on this thing,” referring to the monument.

“Y’all cannot arrest them,” she told the officers. And they didn’t — at least, not that day.

Several hours after Lucas left, a man was severely injured when protesters caused a piece of the monument to fall on him.

The petition accuses Lucas of misusing her office. It argues Lucas knew when she entered the area that her actions would escalate the aggression of the protesters and that by telling police they could not arrest the protesters for being on city property, she knew this would “cause the crowd to unlawfully trespass on the monument.”

“She pretty much gave them a direct order,” Briglin said.

Anderson had made similar claims last year, going so far as to accuse Lucas of having incited a riot and committed a felony in a WAVY-TV interview after the incident and in a video published to his law firm’s social media. Lucas responded by suing Anderson for defamation. When that happened, Anderson discontinued his involvement with the petition, and Briglin stepped up to take his place.

Per state law, a petition seeking to remove an elected official from his or her office must state “with reasonable accuracy and detail the grounds or reasons for removal” and must be signed by a number of registered 18th District voters equal to at least 10% of the 46,519 votes cast when Lucas was re-elected in 2019 “under penalties of perjury.”

That means at least 4,652 signatures. According to Briglin, the petition has more than 6,800, all notarized.

“I went from town to town,” Briglin said.

According to Briglin, the petition had reached the required number of signatures last November, but the COVID-19 pandemic and a special session of the General Assembly this spring delayed its filing. She says she was told it couldn’t be turned in until the state legislature was not in session.

According to the National Conference of State Legislatures, 19 states plus the District of Columbia have recall procedures that allow voters to remove and replace an official via a special election before his or her term of office ends. Virginia isn’t one of them.

That’s because Virginia uses a process similar to recall, but one that doesn’t result in an election but rather a trial — meaning the court, not voters, will have the final say as to whether the petition’s misuse of office claims have merit.

Per the process outlined in state law, the court must issue an order within 10 days of receiving such a petition requiring the elected official to show cause why he or she should not be removed. If, upon trial, it is determined that the official has met the requirements under Virginia Code 24.2-233 for removal, the court will order that person removed from office. According to ballotpedia.org, no state legislator has ever faced recall under Virginia’s process.

“I think it is quite unlikely a court would remove a person voters elected, absent extraordinary circumstances,” said Rebecca Green, a law professor with the College of William & Mary.

Green is one of two experts on election law the school lists on its website, though Green admits her expertise is not specific to Virginia state elections.

Briglin chose to file her petition in Chesapeake’s courthouse rather than Portsmouth’s because she says she doesn’t trust Portsmouth’s courts.

“Because a prosecutor decided they weren’t going to prosecute … they dismissed all the charges; where is the rule of law and order there?” she asked, rhetorically, referring to the criminal charges Lucas had faced last fall when Portsmouth police arrested her two months after the monument incident.

She’d been charged with conspiracy to commit a felony and “injuring” a monument valued in excess of $1,000. Police had also charged 18 other protesters — a list that included the president and vice president of Portsmouth’s NAACP chapter, a city school board member and public defenders.

Police had obtained the warrants by sending Sgt. Kevin McGee to magistrate Mandy Owens rather than providing Portsmouth Commonwealth Attorney Stephanie Morales with the complete results of their investigation, acting on the belief that Morales could be called as a witness in the pending cases. A Richmond-based judge struck down that argument last October, putting the decision to move forward with the prosecutions back into Morales’ hands.

Last November, she filed and was granted a motion to dismiss all charges against Lucas and the other protesters, arguing the group Black leaders had begun referring to as the Portsmouth 19 had a valid entrapment-by-estoppel defense. The term refers to when government officials assure a defendant that his or her conduct is lawful, in this case by not intervening the day of the incident, and then prosecutes that person after the fact.

“The people were not even allowed to be heard; we were not even allowed to present evidence,” Briglin said.

Though Lucas is Black, Briglin denies critics’ assertion that her petition is rooted in racism.

“It’s about law and order,” she said.

Lucas was unable to be reached for comments by press time. Her district office reports she is attending a conference and won’t be back until some time next week.