24.2-803 - Contest of election to General Assembly.
§ 24.2-803. Contest of election to General Assembly.
A. This section applies to any general or special election of members to theGeneral Assembly.
B. A contest of the election of any member to the General Assembly may beinitiated by an unsuccessful candidate in the election, referred to hereafteras the contestant.
To initiate a contest, the contestant shall give written notice, in themanner provided in subsection D, of his intent to contest the election to theperson or persons apparently elected, referred to hereafter as the contestee,and to the Clerk of the House of Delegates if he is contesting a Houseelection or of the Senate if he is contesting a Senate election, no laterthan thirty days following the date of the election or three days after theconclusion of a recount, whichever is later.
The notice shall state the grounds on which the contestant intends to contestthe election. The grounds shall include (i) objections to the eligibility ofthe contestee based on specific allegations, (ii) objections to the conductor results of the election accompanied by specific allegations which, ifproven true, would have a probable impact on the outcome of the election, or(iii) both.
The notice shall state that an answer by the contestee must be filed with theclerk of the appropriate house within ten days following service of thenotice. The contestant shall sign and verify the notice by his oath oraffirmation.
At the time of filing the notice, the contestant shall post a bond withsurety with the Clerk of the House of Delegates or Senate, as appropriate, inthe amount of $100 per precinct contained in whole or in part in the districtbeing contested. If the contestant wins the contest, the bond shall not beforfeited. If the contestant loses the contest, the bond shall be forfeitedto the extent of the contestee's actual and documented costs of defendingagainst the contest, including, but not limited to, reasonable attorneys'fees, expert witnesses' fees, and such costs as would be taxable in an actionat law. If the assessed costs exceed the bond, the contestant shall be liablefor such excess only pursuant to subsection H.
C. Within ten days after service of the contestant's notice on the contestee,the contestee shall file with the clerk of the appropriate house a writtenanswer. His answer shall admit or deny the allegations on which thecontestant relies, or state that he has no knowledge or informationconcerning an allegation which shall be deemed denial, and state any otherdefenses, in law or fact, on which he relies. The contestee shall sign andverify his answer by his oath or affirmation.
D. The notice of intent to contest shall be filed by the contestant with theclerk of the appropriate house and copies thereof served by the contestant asprovided under § 8.01-296 on each contestee. The answer, petition, and anyreply and copies thereof shall be filed with the appropriate clerk, andcopies shall be served on the opposing party or his counsel, if any, in themanner prescribed by Rule 1:12 of the Rules of the Supreme Court of Virginia.
After service of the notice of intent, any party, after reasonable notice tothe other party or parties, shall be authorized to take depositions tosustain or invalidate the election. The contestant shall complete the takingof depositions to submit with his petition at any time within twenty daysfollowing the date of the notice of intent to contest the election, and thecontestee shall complete the taking of his depositions within thirty daysfollowing the date of the notice of intent to contest the election. Bywritten stipulation of the parties, the testimony of any witness may be filedin the form of an affidavit by the witness within the same time limitationsprescribed for the taking of depositions.
Subpoenas for witnesses shall be issued by the clerk of the circuit court ofthe county or city in which the contestee resides on the application ofeither party. Witnesses shall be entitled to the same allowances andprivileges, and be subject to the same penalties, as witnesses summoned toattend the courts.
Every deposition shall be taken before a person authorized by law toadminister oaths, who shall certify and seal the deposition in the samemanner as in judicial civil proceedings, and file the same with the clerk ofthe appropriate house.
E. A written petition shall be filed by the contestant with the clerk of theappropriate house (i) within ten days following the filing of the notice ofintent to contest the election if the contested election was held at aNovember general election and (ii) within ten days following the date of thefiling of the notice of intent to contest the election or within two daysfollowing the commencement of the next session of the General Assembly,whichever is later, if the election was held on a different date. Thecontestee may file a written reply to the petition within five days followingits service on him.
No affidavit may be made a part of, or filed in support of, a petition orreply thereto unless the affidavit has previously been filed with the clerkof the appropriate house, pursuant to the written stipulation of the partiesor their counsel, on or before the date established by subsection D for thecompletion of the taking of depositions by the proponent of the affidavit.
F. If the election was held during a regular session of the General Assembly,the times for filing the notice of intent to contest, the answer, petition,and reply and for taking depositions and affidavits shall be set by theCommittee on Privileges and Elections of the appropriate house. The Committeemay consider the contestant's and contestee's recommendations for theprocedural schedule.
G. The clerk shall refer the notice, answer, petition, reply, depositions,and affidavits to the Committee on Privileges and Elections, which documentsshall constitute the record in the contest. A failure to comply in timelymanner with the filing requirements of subsection B, C, D, or E shall bedispositive of the contest and have the effect of a finding for the opponentof the party failing to meet such requirements.
Unless another committee has been designated by the rules of the house tohear contest matters, the Committee on Privileges and Elections shall hearthe contest and conduct such investigation as has been directed by resolutionof its house. It shall report its findings and recommendations to the housefor its action. The committee hearing the contest shall take up the contestno later than its first regularly scheduled meeting occurring after thefiling of the record in the contest.
H. The house, in its judgment, may find for the contestant and declare himelected, find for the contestee and confirm his election, or declare theelection void and order a writ of election as in other cases of vacancy. Ifthe house finds a tie vote has occurred, it shall direct a determination bylot in accordance with § 24.2-674, but no right to a recount shall bepermitted. If the house finds, by a two-thirds vote of the house that thecontestant has prosecuted the election contest in bad faith, the house mayorder the contestant to pay to the contestee a sum, in addition to the amountof the bond posted pursuant to subsection B, that is not more than thecontestee's additional actual costs of defending against the contest,including, but not limited to, reasonable attorneys' fees, expert witnesses'fees, and such costs as would be taxable in an action at law. A determinationto assess costs against a contestant in excess of the amount of the bondposted pursuant to subsection B shall be made only upon the recommendation ofthe Committee on Privileges and Elections, or other committee designated inthe rules of the house to hear the contest, adopted by the committee by atwo-thirds or greater vote of the committee.
(1981, c. 570, § 24.1-236.1; 1993, c. 641; 1998, c. 866; 2000, c. 1057; 2006,c. 292.)