Virginia Senate Dems claim in lawsuit Youngkin is trying to nullify BOV rejection vote

Nine Virginia Democratic senators have sued the rectors of the University of Virginia, George Mason University and Virginia Military Institute, claiming that Gov. Glenn Youngkin has “chosen nullification” of a Senate committee’s refusal to confirm eight people appointed to the universities’ boards.

“In so doing, Governor Younkin [sic] and the Executive Department have refused to recognize the rejection of those appointments by a coequal branch of government, in open defiance of the Constitution of Virginia and 50 years of tradition in the Commonwealth,” says the lawsuit filed Tuesday in the Fairfax County Circuit Court.

“The Executive Department’s actions leave the defendants here — who bear responsibility for determining whether to seat the now-rejected appointees — in an untenable position and eagerly in need of this Court’s guidance. Likewise, Plaintiffs have no choice but to bring this action to protect and vindicate the Virginia Senate’s constitutional and statutory authority, as well as to protect their own votes from gubernatorial nullification.”

The governor, speaking to reporters Tuesday, called the lawsuit “not only meritless, but it’s a waste of time. It’s a waste of money, and it’s a waste of people’s efforts.”

Youngkin added that his administration has been “working to combat illegal discrimination at our universities and our schools, and Democrats clearly want to work to promote that discrimination,” referring to alleged antisemitism at universities, a theme often repeated by President Donald Trump and other Republicans in response to pro-Palestinian protests on college campuses, although university administrators, faculty members, students and others question the White House’s actual motivations.

“Illegal discrimination is what we are removing from college campuses,” Youngkin added. “And the Democrats want to reintroduce it and promote it. And that’s at the heart of what I think so much of this is about.”

Trump’s administration has accused Harvard, Columbia and other universities of violating Jewish students’ civil rights by allowing protests against the war in Gaza on campuses, although critics say that pulling federal grants and threatening universities with removal of accreditation punishes higher education institutions and is aimed at quashing academic freedom.

Youngkin has not gone as far as Trump, but he issued an executive order in May, directing the state Department of Education and the State Council of Higher Education of Virginia (SCHEV) to track antisemitism and anti-religious incidents in public schools and colleges.

The defendants in the senators’ lawsuit are U.Va. Rector Robert Hardie, George Mason Rector Charles “Cully” Stimson and VMI Board President Teddy Gottwald. Hardie, however, is set to rotate off U.Va.’s board June 30, and Gottwald will no longer be VMI’s board president after June 30, although he remains on the board.

Earlier this month, the Senate Committee on Privileges and Elections rejected the confirmations of eight Youngkin appointees to the boards of visitors at George Mason, U.Va. and VMI, including former Virginia Attorney General Kenneth Cuccinelli. It was an 8-4 vote, with all Democrats on the committee voting to reject the appointments Youngkin put forward for confirmation in May.

According to state law, the legislature must confirm all gubernatorial appointments for them to remain in effect, and if the General Assembly refuses to confirm an appointment, “no person … shall enter upon, or continue in, office after the General Assembly shall have refused to confirm his appointment, nor shall such person be eligible for reappointment during the recess of the General Assembly to fill the vacancy caused by such refusal to confirm.”

However, in a June 11 letter to the three rectors, who lead the universities’ boards of visitors and are tasked with recognizing (or not recognizing) appointments to the boards, Attorney General Jason Miyares wrote that the eight people do remain members “with the rights and responsibilities conferred upon a member of a board of visitors.”

Speaking with reporters Tuesday, Miyares said that the eight rejected appointees “have been lawfully appointed,” and added, “I think it is very unfortunate to see certain individuals in the state Senate that want to try to politicize the governance of these boards and just somehow removing these people.”

Miyares has contended that the entire legislature must vote to deny confirmation of a gubernatorial appointment for it to take effect, but Democrats say that the Senate committee has that responsibility outside of the General Assembly’s regular session.

The eight Democrats who voted to reject the appointees and Sen. L. Louise Lucas, acting as the state Senate president pro tempore, are the nine plaintiffs in the lawsuit.

In a statement, Lucas said, “This lawsuit is not about politics – it’s about preserving the constitutional balance of power that has served Virginia well for centuries. The Virginia Constitution clearly grants the General Assembly authority to confirm or reject gubernatorial appointments. When university rectors ignore our constitutional role at the behest of the governor and attorney general, they undermine the very foundation of our democratic institutions.”

Sen. Scott Surovell, who previously wrote to the state’s university rectors reminding them of the legislature’s authority in confirming or rejecting the governor’s appointments, issued a news release Tuesday saying that the lawsuit “specifically challenges the assertions by Gov. Youngkin, Attorney General Miyares and Secretary of Education Aimee Guidera, who have urged and advised university rectors to ignore the actions of the Senate of Virginia and seat the eight rejected members.”

Hardie and Stimson did not immediately respond to requests for comment on the lawsuit Tuesday. Lt. Col. Sherry L. Wallace, a VMI spokesperson, referred Virginia Business to a June 10 letter from Gottwald to Surovell, in response to a request for comment sent to Gottwald on Tuesday. Wallace said that since the matter is in active litigation, VMI “cannot make any additional comments on the matter.”

The state Senate Republican caucus issued a statement blasting the lawsuit Tuesday. Senate Minority Leader Ryan McDougle and Caucus Chair Mark Obenshain said, “This lawsuit is a blatant attempt by Senate Democrats to do in the courtroom what they failed to do through legitimate legislative processes. It rests on a fundamentally erroneous interpretation of the Virginia Constitution and ignores both procedural rules and historical precedent.”

Surovell and others, however, note that the committee has taken hundreds of votes confirming Youngkin appointees without a full legislature vote, as well as previous rejections recognized by the governor.

Who the rejected appointees are

The Democratic-controlled Senate committee, which is charged with confirming all board and commission appointments by the governor, met in a special session June 9 to vote on the three boards’ appointees. In addition to Cuccinelli’s appointment to the U.Va. board, the body rejected in a party-line vote the following people:

Charles J. Cooper, a Florida appellate attorney who represented former U.S. Attorneys General Jeff Sessions and John Ashcroft and served as a U.S. assistant attorney general under President Ronald Reagan, was among the rejected appointees to George Mason’s board, along with Caren Merrick, who served as the state’s immediate past commerce secretary under Youngkin. William Hansen, a former U.S. deputy secretary of education under President George W. Bush, and Maureen Ohlhausen, a former Federal Trade Commission chair, were also rejected by the Senate committee.

VMI appointees John Hartsock, deputy chief of staff for U.S. Rep. Ben Cline; Stephen Reardon, an attorney with Spotts Fain; and Florida businessman José J. Suárez — all three alumni — were also rejected.

According to Surovell, the Senate’s majority leader, and other Senate Democrats, they object to what they view as the governor’s attempt to exercise more power over the state’s public universities through his board nominees.

Hartsock and Reardon were appointed to VMI’s board in February, Surovell said, just after the General Assembly concluded its regular session and just before the military institute’s board voted not to renew the contract of VMI’s first Black superintendent, retired Army Maj. Gen. Cedric Wins, who was hired in late 2020 on an interim basis and then offered the permanent post in 2021. The timing of the appointment meant that the legislature did not have the opportunity to vote on their nomination, and the two unconfirmed appointees were part of the board when it voted to oust Wins.

Surovell went on to allege that Youngkin “inappropriately” tried to influence boards, including calling BOV members to tell them how to vote.

However, Gottwald said in his June 10 letter to Surovell that he was “not aware of any directive, binding or otherwise, that the Governor has given members of our BOV. I believe that any suggestion of that sort has no basis in fact.” Gottwald added that Hartsock, Reardon and Suárez, who was appointed in April, were “equally qualified” to serve on the board. The rector also noted that the Senate committee previously refused to confirm two earlier VMI appointees, Quintin Elliott and Clifford Foster, earlier in the year.

New board appointments

Coincidentally, Youngkin released his list of 65 BOV and other higher education organization appointees Friday, as the end of some board terms approach June 30.

The list, which includes appointments to U.Va., VMI and George Mason’s boards, does not specify whether appointees are replacing only people who are rotating off the board or if they are also named to replace the eight rejected appointees from June 9. However, Suárez appears on the new list of VMI appointees, seemingly in violation of the state code’s statement that a rejected appointee cannot be re-appointed “to fill the vacancy caused by such refusal to confirm.”

It’s unclear what action the Senate committee will take on the newest group of appointees amid the conflict over the rejected board appointments.

Among the appointees are:

• Eric Cantor, former U.S. House of Representatives majority leader from Henrico County; William & Mary
• Bobbie Kilberg, former president and CEO of Northern Virginia Technology Council; George Mason
• Robert M. “Bob” Tata, a partner at Hunton Andrews Kurth; Old Dominion University
• James W. Dyke Jr., a senior adviser at McGuireWoods Consulting and former Virginia secretary of education; Richard Bland College
• H. Eugene Lockhart, former CEO of Mastercard; U.Va.
• Andy Florance, founder and CEO of CoStar Group, who is being re-appointed to Virginia Commonwealth University’s board
• Charles W. King, interim president of James Madison University; State Council of Higher Education for Virginia