CHAPTER 489

An Act to amend and reenact §§ 24-393, 24-394, 24-395, 24-431, 24-434,
24-435 and 24-436 of the Code of Virginia and to amend the Code of
Virginia by adding three new sections numbered 8§ 24-395.1, 24-895.2
and 24-395.8 so as to provide for: the composition of courts to deter-
mine certain election contests; the procedure as to complaints, counter
complaints, evidence, hearings and costs in such cases; the disposition
and effect of such cases under certain circumstances, and the finality
of the decision in such cases.

[S 343]

Approved April 2, 1952

Be it enacted by the General Assembly of Virginia:

That §§ 24-398, 24-394, 24-395, 24-431, 24-434, 24-435 and 24-436 of
the Code of Virginia be amended and reenacted and that the Code of
Virginia be amended by adding three new sections numbered §§ 24-395.1,
24-395.2 and 24-395.3, which amended and new sections shall be as follows:

§ 24-393. In the case of a nomination of a candidate for election to
the United States Senate, or for election to any State office, the proceeding
to contest shall be in the Circuit Court of the city of Richmond before a
special court composed of the judge of such circuit court and two judges
of circuit or corporation courts of counties or cities in this State not
contiguous to the city of Richmond, appointed by the Chief Justice of
the Supreme Court of Appeals, or, in the event of his inability to act, then
by the next senior justice of such court. Qualified voters who participated
in such primary and are domiciled anywhere in the State shall be eligible
to initiate the contest by signing the complaint.

If the judge of the Circuit Court of the city of Richmond be absent or
unable to sit in such proceeding, or in the event such judge shall enter of
record that he is so situated with respect to the proceeding as to render it
improper, in his opinion, for him to sit in such proceeding and the clerk of
the court shall at once certify the same to the Chief Justice of the Supreme
Court of Appeals, then a third judge shall be designated in the same
manner as were the two remaining judges, except that in appointing such
third judge, the Chief Justice of the Supreme Court of Appeals or the
associate justice acting in his stead shall, if possible, appoint a judge of a
court of record of the city of Richmond or an adjoining county.

§ 24-394. In the case of a nomination of a candidate for election to
the House of Representatives of the United States, the State Senate, the
House of Delegates, and to any county, district or city office, the proceeding
to contest shall be in the circuit court of the county or corporation court
of the city in which the candidate resides. The proceeding shall be before
a special court composed of the judge of such circuit or corporation court
and two judges of circuit or corporation courts of counties or cities remote
from the county or city in which such candidate resides, appointed by the
Chief Justice of the Supreme Court of Appeals, or, in the event of his
inability to act, then by the next senior justice of such court. The com-
plaint initiating the contest shall be signed by qualified voters who partici-
pated in such primary and who are domiciled in the district, political sub-
division or territory from which the candidate involved was entitled to
receive votes.

If the judge of the circuit court of the county or corporation court of
the city in which the candidate resides be absent or unable to sit in such
proceeding, or, in the event such judge shall enter of record that he is so
situated with respect to the proceeding as to render it improper, in his
opinion, for him to sit in such proceeding and the clerk of the court shall
at once certify the same to the Chief Justice of the Supreme Court of
Appeals, then a third judge shall be designated in the same manner as
were the two remaining judges, except that in appointing such third
judge, the Chief Justice of the Supreme Court of Appeals or the associate
justice acting in his stead shall, if possible, appoint a judge of the same
or an adjoining county or city.

§ 24-395. All * proceedings to contest any primary election or second
primary election shall be conducted, mutatis mutandis according to the
rules of law and equity governing contests in regular elections, as provided
by §§ 24-430 to * 24-436, and the judgment or order of the court in such
proceeding shall be final; provided, however, that in the case of a primary
election at which the nominee is required to be nominated by a majority
vote, no complaint filed by or on behalf of the candidate receiving the
second highest number of votes cast in the primary shall be valid unless
such candidate shall have requested a second primary within the time and
in the manner prescribed by law.

§ 24-395.1. In deciding any contest of a primary election in which
the nominee is to be selected by a plurality vote, if the court can determine
the candidate who has received a plurality of valid votes in the primary,
it shall certify the name of such candidate to the proper electoral board or
boards and such candidate shall be the party nominee and his name shall
be printed on the official ballot to be used in the election for which the
primary was held. The name of no other person who was a candidate for
the contested office in the primary shall be printed on the official ballots
as a candidate for that office.
If, in such case, the court be unable to determine which candidate
received a plurality of valid votes, or, if the court determine that there
has been no valid election, the party nominee shall be determined in ac-
cordance with the provisions of § 24-865 of the Code.

§ 24-395.2. If, in any primary election in which the nominee is to
be selected by a majority vote, the primary be contested and the official
results of the election indicate that one candidate has received a majority,
the court shall determine the matter in all respects as provided in §
24-3895.1.

If, in any such primary, the official results indicate that no candidate
has received a majority, the court shall not, by injunction or otherwise,
prevent the ordering or holding of any second primary provided by law.
However, the court shall proceed to determine the results of the first
primary. If, in deciding the results of the first primary, the court shall
determine that one candidate received a majority of the valid votes cast
at the primary, it shall certify the name of such candidate to the State
Board of Elections which board shall certify the name to the proper
electoral board or boards and such candidate shall be the nominee of the
party and his name shall be printed on the official ballots to be used in
the election for which the primary was held and the name of no other
person who was a candidate for the contested office in the primary shall
be printed on the official ballots as a candidate for that office. In such
event any second primary held for such office shall be a nullity.

If, in deciding the results of the first primary, the court shall deter-
mine that no candidate has received a majority of the valid votes cast, tt
shall, if possible, determine the two candidates having received the highest
number of vaild votes cast, and the names of the two candidates so deter-
mined shall be certified to the State Board of Elections together with the
number of valid votes each received. If the two candidates so determined
be the same as the two candidates having the highest number of votes
according to the official election returns, the candidate receiving the
highest number of votes in the second primary shall be the party nominee
and his name shall be printed on the official ballots to be used in the election
for which the primary was held and the name of no other person who was
a candidate for the contested office in the primary shall be printed on the
official ballots as a candidate for that office. If the two candidates deter-
mined by the court to have received the highest number of valid votes be
not the same as the two candidates having the highest number of votes
according to the official election returns, then the candidate determined
by the court to have received the highest number of valid votes shall be the
party nominee and his name shall be printed on the official ballots to be
used in the election for which the primary was held and the name of no
other person who was a candidate for the contested office in the primary
shall be printed on the official ballots as a candidate for that office.

If the court in any such case determine that no valid primary has been
held the party nominee shall be determined in accordance with the pro-
visions of § 24-865 of the Code.

If, in any contest of a primary election for which a second primary
election has been ordered, the court having jurisdiction of such contest
shall, prior to the day for the holding of such second primary, certify to
the State Board of Elections that one candidate in the primary has re-
ceived a majority of the valid votes cast or that no valid primary has been
held or certify to the State Board of Elections the names of two candidates
having received the highest number of valid votes cast in the primary,
either one of which was not determined by the State Board of Elections to
have received the highest or second highest number of votes according to
the official election returns, then, and in any such event the second primary
shall not be held and the State Board of Elections shall so notify each
electoral board in the State.

§ 24-395.3. When the proceeding to contest any primary or second
primary election shall have been decided, costs shall be taxed against the
unsuccessful party, for which purpose the persons making the complaint
shall be deemed parties.

§ 24-431. The court shall be composed of the judge of the court
in the clerk’s office of which the complaint is filed and two judges of
circuit or corporation courts of counties or cities remote from the county
or city in which the candidates reside, appointed by the Chief Justice of
the Supreme Court of Appeals or, in the event of his inability to act, then
by the next senior judge of such court.

If the judge of the circuit or corporation court in which the complaint
1s filed be absent or unable to sit or in the event such judge shall enter of
record that he is so situated with respect to the proceeding as to render
it improper, in his opinion, for him to sit in such proceeding and the
clerk of the court shall at once certify the same to the Chief Justice of the
Supreme Court of Appeals, then a third judge shall be designated in the
same manner as were the two remaining judges, except that in appointing
such third judge, the Chief Justice of the Supreme Court of Appeals or the
associate justice acting in his stead shall, if possible, appoint a judge of
the same or an adjoining county or city.

§ 24-434. The complaint shall be filed in the clerk’s office of the
circuit court of the county or corporation court of the city, and a copy
thereof served, as a notice is served under Section 8-51 within * ten days
after the election, on the person whose election is contested, otherwise the
complaint shall not be valid.

No enlargement of the complaint and no amendment thereto, except
as to form, shall be permitted.

§ 24-435. The person whose election is contested shall, within ten
days after the copy is served on him, file in the clerk’s office a counter
complaint, in which he shall set forth a list of all the votes which he will
dispute, with the objections to each, and of the votes improperly rejected
which he will claim, and a statement of the objections, if any he has, to
the person in whose behalf the contest is made. If no such counter com-
plaint be filed within the time prescribed, the person whose election is
contested shall not be heard to assert any claim or objection which is
herein required to be stated in such counter complaint.

No enlargement of the counter complaint and no amendment thereto,
except as to form, shall be permitted.

§ 24-436. After service of a copy of the complaint, either party,
after reasonable notice to the adverse party shall be at liberty to take
depositions to sustain or invalidate the election or return *. The proceed-
ings shall take precedence over all other business of the court or any of
the judges and shall be heard and determined as soon as possible. The
contest shall be heard and determined without a jury, on the testimony
thus taken and upon any other legal testimony that may be adduced by
either party. In judging of such election or return, the court shall pro-
ceed on the merits thereof and decide the same according to the Consti-
tution and laws.