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NEWS: Mitchell Retiring; McCleary to Run (UPDATED 6/4)

June 4, 2011

UPDATE 6/4: Since our initial posts, quite a bit more news has developed on this story. Additionally, I wasn’t 100% satisfied with the grammar or the level of historical background, so I feel an update is in order. Where applicable, I have made note of updated details. The original post is available in archives.

I knew that today would be a big day, what with coverage of the BOS Worksession….ok, big for me, yawn for everyone else. But it suddenly turned into a HUGE day with the announcement that Al Mitchell, Shenandoah County’s Commonwealth’s Attorney, would not be seeking re-election this fall, according to the Northern Virginia Daily. Mitchell was first elected in 1999 over Independent Brad Pollack, having been appointed earlier in the year to complete the term of William Logan, who had been appointed as judge in the Juvenile and Domestic Relations Court. He was re-elected in 2003 and 2007 without opposition. This is technically Mitchell’s fourth term,  as he previously held the office between 1972 and 1976 when it was a part-time position.

With that announcement, the 2011 campaign cycle got far more interesting. It was anticipated that none of the constitutional offices would be open nor that they’d even face challengers. Usually, there’s a big scramble for these seats not for ideological or political reasons, but because of one base motivator: money. The constitutional offices pay very well compared to the average citizenry. What’s more most of them don’t have basic qualifications, other than being a qualified voter of the county and having lived in the commonwealth for one year. That is, except for the office of Commonwealth’s Attorney. Under the Code of Virginia, the CWA (we like abbreviations, so step off) has to be a member of the bar. In fact, its the only office with such a restriction. In our experience, the biggest scramble tends to be when a seat comes open–that is, there’s no incumbent in the race–but challenges to constitutional officess are not unknown in the Shenandoah Valley, but are generally unsuccessful. Incumbents have staffers, and staffers means a built in cadre of volunteers with the strongest motivator of them all–staying employed. Challengers CAN and have won, but again, the biggest fields you’ll see for these races are when the seat is open.

So that’s the biggest frame for this discussion–there’s a smaller pool of eligible candidates than any other office–though we should view eligible and qualified as two seperate terms. Its one thing to be strictly eligible to hold the office–its something completely different to actually be viewed as someone, by both the press and the citizens, who can actually discharge the duties of the office. To wit, a few years back in Rockingham County they had an 11 way contest for Clerk of Court. Everyone on the ballot could hold the office–they wouldn’t have been put on there if they weren’t eligible. The larger question, though, was how many could actually do a good job at it? That’s largely what the election will be fought over.

 It should also be noted that the mindset of these offices is much different from, say, the House of Delegates or Board of Supervisors. Those are positions where leaders can actually play a role in dictating policy, passing legislation, ordinances, etc. The Constitutional Offices are almost 100% administrative jobs–their tasks are laid out in the Constitution of Virginia and the Code of Virginia. The tax rates that the Commissioner and Treasurer deal in are set by the Board of Supervisors. The closest the COs ever get to setting actual policies is internal office policies and in lobbying for funding for their office (which is also set by the Board). CWA and Sheriff are unique because they have some leeway in how they discharge their duties in regards to what’s prosecuted/what’s focused on, but offices that go after certain crimes/turn a blind eye to others tend to get a bad image in the public eye. Because 3 of the 5 jobs are primarily clerical in nature, there’s an assumption that just about anyone with a background in accounting or business can do them–which can lead to people who are only moderately successful in business to think they can do the job because, well, it pays alot better than what they’re doing now. The Sheriff is unique because, although not mandated by the State, it is expected that the Sheriff should actually have some law enforcement experience if he’s going to be responsible for the safety of the county. The CWA’s office is unique because its the only one that REQUIRES professional credentials–though it should be noted that credentialing programs have been set up for at least the Treasurer’s and Commissioner of Revenue’s by their state associations, though again, they are not mandated

Again, these offices tend to bring people out of the woodwork, because they pay well. Additionally, the conventional wisdom is that these races can be won by just about anyone for a few reasons. One, the party label does not appear on the ballot. Even if someone is the Republican nominee, they won’t have an R next to their name. The party’s involvement is in getting on the ballot–there’s no benefit of the label on the ballot, though the nod does come with access to party resources. At any rate, there’s an assumption that, without that guide, more casual voters are likely to vote for the person they’ve heard the most about or just happen to know. Secondly, the thinking is that people, even if aware of the party labels, will discard with that and vote for the best man for the job. Finally, in keeping with that, given the local nature of the race, its much easier to build a “friends and family” coalition of people who would support you for any office on any ticket, even if you’re running as a confounded Democrat.

But does that hold up in real life? Well, to be honest, open or even challenger races are somewhat rare in Shenandoah County. Incumbents hang onto these jobs, and with the power of incumbency, most people are scared to challenge the person sitting in these jobs. You can generally expect one contested seat each time–either open or challenger. Challengers, though, are ultimately rarer. There’s even something of a gentleman’s agreement that the Treasurer is just not to be challenged. The last time an office was contested was in 2007, when incumbent (and then Republican) Clerk of Court Denise Barb was challenged by independent Tammy Heishman. Barb scored a solid win with 58% to 42% for Heishman. But to find the last truly open race, we have to go back to 2003, when now-incumbent Republican Tim Carter received 53% of the vote over 4 rivals. Though stats are not readily available, in 1999 Mitchell won his kinda open seat as an R, as did Commissioner of Revenue Kathy Black over a Democrat. (Hers was also kinda open, as she had been appointed earlier in the year). In fact, the only Republican who DIDN’T win that year was “Porky” Bowman, who was challenging incumbent Independent Sheriff Larry Green.

Just for shoots and giggles, let’s go back a little further and a little wider and look at the last time an independent won ANYTHING (i.e. include the Board of Supervisors). That would be 2003, when Jim Patrick knocked off incumbent Republican Supervisor Bev Fleming in District 2. During that campaign Patrick ran decidedly to the right of Fleming, even going so far in campaign materials as to highlight ways that, in his view, Fleming had violated the Republican Creed. Additionally, Fleming had another independent to his left in the guise of Steve Shaffer, then District 2 member of the School Board. Fleming was under pressure, as well, for a controversial vote on a concrete plant project in Mt. Jackson. Add all that up, and it led to 36% for Fleming but 44% for Patrick–in that case, Patrick was able to capture a sizable chunk of the Republican vote and at least partially benefit from the incumbent’s weaknesses with independents. That’s the path to victory for an independent in Shenandoah County. Larry Green used a modified path in 1995 when he knocked off Republican Sheriff Marshall Robinson, except Green didn’t so much run to the right as benefit from Robinson’s weakness across the entire electorate due to an ethics scandal that had embroiled nearly the entirety of County Government. Now what of the Democrats? Well, to be honest, I’m having trouble getting that information in hand. Cindy George, the incumbent Treasurer, has been re-elected without challenge since at least 1999. George Shaffer challenged her in either 1995 or 1991….the year escapes me at the moment, but I believe at that time it was an open seat. Democrat Ben Nelson lost his re-elect in 1999, but I’m not sure when he was first elected or if he had a challenger. Throughout the 2000s there’s been a variety of Democratic challengers for the Board of Supervisors–Ray Brownfield twice (2001, 2005) in District 1, Clarence Shubert (2005) and Jim Fitzsimmons (2009) in District 4–but other than Mrs. George, there hasn’t been a candidate for a constitutional office since 1999, when they ran Tara (?) Manuel of Strasburg, and she lost. So its unclear just what a Democrat’s path to victory in Shenandoah County looks like, since one hasn’t successfully won a contested race with the party label (note that there are a few “Democratic” town council members, but these races are officially nonpartisan) in at least a decade and a half. I assume it plays out like this: hold together EVERY Democrat and hope that a conservative challenger splits the Republicans down the middle but splits independents with you, while picking up just enough Republicans to squeak by.)

So in reality, at least in Shenandoah County, that logic doesn’t quite hold up–maybe its due to the fact that a majority of the county is Republican, but being a small county they also know the Republican so they’re voting just as much on personality as party. Whatever the case, its clear that the party has a pretty solid track record and their nominee would be the prohibitive favorite going into November.

So where do we go from here? Well, keep in mind Al is NOT resigning, so that doesn’t trigger an avalanche of state code provisions. No, this is just now a simple open seat process.  To clarify, what I mean is that this will proceed just like a regular election, not a special, because, well, it is one–the only change is Al Mitchell’s name won’t be on the ballot. On the Republican side, there are four options: a state run primary, a party mass meeting (in which all eligible voters claiming to be Republicans can attend), a convention (in which voters must first be elected as delegates at their own precinct level mass meetings), or a canvass (which is essentially a party-run primary, with a secret ballot).  Democrats are limited to a caucus (their term for mass meeting), convention, or primary. My money? Convention for Republicans, Caucus for Democrats.

So who will run? Well, the interesting thing about all this is Virginia has a variation on the sore loser law for primaries. While you cannot run on the general election ballot if you lose a party primary, you CAN if you manage to collect enough signatures after losing a non-primary contest (canvasses included). Just 125 signatures gets you on the ballot, so its altogether possible you could be half way there just by getting signatures from delegates who supported your losing bid the night of the convention (though no one I know of has ever been quite that brazen). This can and HAS happened here in Shenandoah County (the running after losing part, not signatures the night of).

However, in theory, the party could, COULD put the kibbosh on any such efforts by holding its nominating contest sometime during the day on the 23rd, which is the filing deadline for independent candidates and the date by which the winner of a party nominating method needs to get their qualification form in. Since the chair does not certify the candidates until the 26th, a party could hold it during the day on the 23rd, a Tuesday, giving the winner enough time to qualify but the lost not enough to collect signatures. However, there’s also nothing stopping someone from collecting signatures BEFORE the contest–though this could certainly hurt the argument of why the party should nominate them if they’re going to run regardless. Again, this is all highly theoretical, and while possible under the State Party Plan and State Code (at least as far as I read it), I highly doubt it would survive a court challege.

 Honestly, its more common for Republicans to chicken out challenging the candidate who appears to be handpicked and start a run as an indy BEFORE the nomination takes place, but it has happened–in fact, happened here in the 1999 Sheriff’s race. My point to all this is anyone who’s mentioned as running could foreseeably run as an R or Indy. As for the Dems, well……there are a few left/Dem leaning lawyers I’ll mention, but honestly, its been over a decade since they even nominated someone who wasn’t named Cindy George for a constitutional office. But that could change….

So who’s out there? Again, as we pointed out, Constitutional Offices are attractive for a number of reasons: being an elected without really building a record, powerful incumbency, and good paid. But while CWA has all these perks, it also has one built in problem: you gotta be a lawyer. And not just a lawyer–a member of the VA Bar. So who is ELIGIBLE and could run? Well, there’s a few lawyers on the Republican Committee already–the McClearys, the Wiseleys. Kevin Black, husband of Kathy Black, is also a lawyer, though word has it he’s a bit more independent minded than some Republicans may like. Brad Pollack has made his face shown often since 2008, but Pollack has had a bit of domestic trouble, and at one time was a Warner appointee (though Governor Warner eventually backtracked on that appointment). It should also be noted that Pollack was also briefly suspended by the State Bar Association, so whatever ambitions he may have, he probably belongs more in the “eligible” rather than the “qualified” category.  Of course, the 800 pound gorilla is Delegate Todd Gilbert, a career prosecutor. UPDATE: The Daily News Record reports that Gilbert has sworn off any challenge. Any candidate, save Pollack, is likely to defer to him, but frankly, Gilbert has developed enough power in the House that even a substantial pay raise may not be that appealing.

 On the Democratic side, there’s Mike Cook, Kermit Racey, and Billy Allen. A darkhorse on their side could be Rhodes Ritenour, a Shenandoah County boy who now works in Richmond as a commercial litigator–he bring some political connections and possibly money to the race. The question is, though, would he want to, and even if he did, could he? Well, under the state code, he only need live here 30 days, so  its a possibility, but the clock is ticking. If Pollack really wants to run, he could switch sides again–he used to work for Doug Wilder and reached out to Dems in his failed 2001 House campaign, so its not clear he’s wedded to the GOP yet, though he has been spotted at a number of events since 2008 and been a delegate to a few different conventions. How about independents? Well, that’s trickier–pretty much anybody above, save the McClearys or the Wiseleys, could ultimately decide to go indy, and even a Dem could decide that the D, even if its not on the ballot, its too costly and just run solo.

We’ll keep you abreast of this story as it develops, but there’s the long and the short of it.

UPDATE: As we reported previously, Woodstock Mayor Jeremy McCleary will be running. The full text of our announcement:

On the heels of our earlier announcement that three term Commonwealth’s Attorney Albert T. Mitchell would not seek a fourth term, we have news that Jeremy McCleary, the Mayor of Woodstock and Chair of the Shenandoah County Republican Party is seeking the Republican nomination for the office of Commonwealth’s Attorney. McCleary was elected Mayor in 2010 and has recently earned plaudits from the Free Press for his leadership in seeking a balanced budget for the town. McCleary is a graduate of William and Mary and the Syracuse University College of Law. He is married to Dragana McCleary, who works in the Commonwealth’s Attorney’s office.

The process for nomination has not yet been slated, due to the change in precinct boundary lines affecting nominations for the Board of Supervisors. The Republican Committee will pass a call for the nominating process at a June 15th meeting of the elected committee, which consists of precinct officers, district chairs, at-large members, other officers, and elected officials. Past history suggests that the party will choose a convention.

We will have continuing information on this story as it develops.

As of right now, we’re not hearing of any other candidates. Got a tip for us on that front? Use the page provided under Contact Us. What we’re hearing is that the Republican legal community is embracing McCleary’s run. We had heard that Gilbert would stay out, but waited until we could confirm it.

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