UPDATE: The lawsuit was filed on July 31 and is attached below.

CHESAPEAKE, Va. (WAVY) — Chesapeake City Council wants a judge to decide whether Councilman Don Carey should have had to resign from his City Council seat in order to be on the ballot for mayor this fall.

Council voted 5-3 Tuesday — Mayor Rick West abstained — to direct the city attorney to petition the court regarding the matter. Carey and council members Robert Ike, Jr. and Ella Ward voted against the motion put forward by Councilwoman Amanda Newins.

After the vote, Carey told 10 On Your Side the move was “unethical, it’s disingenuous, and it’s all politically motivated.”

The debate revolves around Chesapeake’s city charter, which states that if a member of council runs for mayor, “he or she may be eligible to do so,” but they must resign from council by June 30 of that election year, which would have previously been the last day of the term.  

However, that code is based on Chesapeake’s old system that had local elections in May, and wasn’t updated to reflect Chesapeake’s current system. Chesapeake City Council voted back in 2021 to move local elections to November after a change in Virginia state law.

Newins pointed to a recent opinion from the attorney general that said Carey should have to resign. However, according to Councilwoman Ella Ward, members of the General Assembly said Carey should be able to stay in his seat through Dec. 31.

The controversy comes after Carey, who made a run for the Virginia House of Delegates back in 2022 as a Republican, switched parties to run in this November’s elections against incumbent Mayor Rick West.

Carey also recently championed the idea of an advisory referendum to ask voters if they would be in favor of district voting over at-large voting. State Sen. Louise Lucas, (D-Portsmouth) has signaled she thought a lawsuit to institute district voting would be appropriate.

While local elections are nonpartisan, West has the endorsement of the local Republican Party.

When reached by phone, West said didn’t think it would be appropriate for him to weigh into the matter.

If Carey ends up being removed from the ballot, West would run unopposed.