Three misdemeanor charges against state Sen. Joe Morrissey alleging violations of polling regulations after he interacted with voters and election officials inside a polling place during his 2019 election were dropped Friday.
The motion to drop the charges was the request of special prosecutor Greg Overholser, an assistant commonwealth’s attorney from New Kent County. The legal term for the maneuver is “nolle prosequi,” Latin meaning “unwilling to pursue,” which typically opens the door for the charges to be brought back if additional evidence is found. But Overholser told the court he had no intention of reasserting the charges later.
“In looking at the totality of the circumstance, the case wasn’t right for prosecution at this time,” Overholser told a reporter after the hearing.
Morrissey had filed a motion to dismiss the charges prior to Friday’s hearing based on six affidavits he had attached to the motion from poll workers and election officials saying he had done nothing that violated the law. Many of them, as well as half a dozen others, were prepared to testify on Morrissey’s behalf at Friday’s hearing.
Retired General District Court Judge Robert H. Downer, of Charlottesville, made the ruling in less than three minutes. The substitute judge was appointed last month after General District Judge David Hicks recused the entire Richmond bench from hearing the case after issues of conflict arose. Morrissey sits on the Judiciary committee that recommends judicial appointments for the General Assembly’s approval.
Morrissey has dubbed the situation “Donutgate” because he’s accused of passing out doughnuts to poll workers and voters in violation of state code. The criminal complaint also alleges that Morrissey kept voters from casting their ballots on Nov. 5, 2019, while taking photos in the Powhatan Community Center.
So here’s video of Joe Morrissey saying forget the 40 feet rule and passing out donuts to election staff AND voters INSIDE my polling location...he thanked them for their support, invited them to his election night party and then took pictures...while I had to wait to check in https://t.co/Gr60cpLDqd pic.twitter.com/b9qEaa8Gzq— Miss Andry ✊🏽 (@The_BKC) November 5, 2019
“Every single interior poll worker was contacted and provided an affidavit,” Morrissey said in a statement released ahead of Friday’s hearing. “Each poll worker makes it abundantly clear that Senator Morrissey’s behavior on Election Day, November 5, 2019 was proper, legal and consistent with what every other candidate has been doing for decades.”
Five poll workers at the Powhatan Recreation Center also provided affidavits, as well as the vice chairman of the Richmond Electoral Board, Joyce Smith, who wrote: “it is completely proper and lawful for a candidate to offer poll workers with snacks and I have never ever seen a candidate prosecuted for this behavior.”
Smith was not working inside the polling place during the 2019 election, but said she reviewed videos of the interactions.
“There is absolutely nothing in the video that show Mr. Morrissey doing anything improper,” her affidavit reads.
Another elections officer said no one complained about his disrupting the voting process that day.
“The charges are outrageous and do not accurately reflect what happened at the polls that day,” according to an affidavit by Shirley Hardy Burno, the assistant chief elections officer at the Powhatan precinct.
Morrissey called the charges “frivolous” after the hearing. He also alleges that they are politically motivated, saying: “Attorney General Mark Herring authorized an investigation without doing any investigation whatsoever.”
Herring’s office has said it has had no involvement in the investigation or the prosecution of the case. Virginia State Police said Richmond Commonwealth’s Attorney Colette McEachin requested the investigation and that Herring “approved initiation of the investigation in December 2019, in accordance with state law concerning the investigation of an elected official.”
From there, the case went to the state police and the New Kent special prosecutor, after McEachin’s office recused itself as Morrissey once headed it. It wasn’t until nearly a year later, on Nov. 30, 2020, that Morrissey was served with the summonses at his law office.
Morrissey questioned the timing of the charges and the investigation by the state police, who spoke to only one of the poll workers from which Morrissey got affidavits and, according to her affidavit, she refuted the charges at the time.