The Democratic caucus in the Virginia House of Delegates filed a federal lawsuit against Stafford County this week demanding that 55 late-arriving absentee ballots be counted in a close Fredericksburg-area election that could tip control of the House.
In the 28th House District, Democrat Joshua Cole trails Republican Bob Thomas by 82 votes, according to tallies that are scheduled to be certified by the State Board of Elections next week.
The lawsuit, filed on Cole’s behalf against both Stafford and state election officials, centers on 55 absentee ballots that didn’t arrive in the Stafford registrar’s office until the morning after Election Day. The Stafford Electoral Board voted 2-1 Tuesday to disqualify the ballots due to a state law that says all mail-in ballots must be received before polls close at 7 p.m. on Election Day. The suit was filed Tuesday in federal court in Alexandria.
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Marc E. Elias, a Democratic superlawyer spearheading the lawsuit, said on a press call Wednesday that regardless of whether the U.S. Postal Service was late in delivering the ballots or the registrar’s office was late in tracking them down, votes shouldn’t be tossed out because of a government mistake.
“These could be votes that help the Democrat. They could be votes that help the Republican,” said Elias, who served as general counsel to Hillary Clinton’s 2016 presidential campaign and oversaw Democratic recount efforts in Virginia’s tight 2013 election for attorney general. “What I think is important, and should be important to everyone on a bipartisan basis, is that Virginians who cast their ballots in this fashion should not be disenfranchised because of errors made by government officials.”
In the Nov. 7 elections, Democrats came right to the edge of seizing control of the House, but after flipping 15 GOP seats, they appear to be one seat shy of a 50-50 split. With recounts expected in at least three close House races, Democrats are looking to pick up votes however they can as Republicans try to cling to a 51-49 majority.
The lawsuit in the 28th District, currently represented by retiring Republican House Speaker William J. Howell, is the first litigation brought by a political party as both sides try to raise money for what could be a drawn-out battle for every vote. A separate lawsuit filed in Stafford by the NAACP Legal Defense and Educational Fund was dismissed Tuesday.
Democratic leaders had previously portrayed the 55 disputed absentee ballots as votes mailed in from active-duty military members, but they backed off that claim Wednesday and acknowledged they didn’t know how many of the ballots came from military personnel.
“The fact is, whether they are military ballots or they are civilian ballots, the right to vote is equal in both cases,” Elias said.
“It was reported that way to us by local folks on the ground that these were military ballots,” said Trent Armitage, executive director of the House Democratic Caucus. “We don’t know yet what the breakdown of these ballots are. Because they haven’t been counted yet.”
The military angle featured prominently in Democratic statements over the Veterans Day weekend demanding that the votes be counted.
In a Veterans Day statement, Democratic Party of Virginia Chairwoman Susan Swecker called on the Stafford board to “do right by our men and women of uniform and count these votes.”
Stafford Registrar Greg Riddlemoser has said the 55 disputed votes were “a collection of all types of absentee ballots that happened to be in the postal pipeline at that same time.” Riddlemoser said it’s not unusual for some absentee ballots to arrive in the mail after elections have ended.
Though Riddlemoser has said the law prohibits counting ballots that arrive late, he voiced his frustration with the situation in an email to state election officials. In the Nov. 8 email, Riddlemoser said his office calls the post office every hour on Election Day to ask if there’s any election-related mail. The Richmond mail distribution center called the Stafford election office at 3:30 p.m. on Election Day to say it had 10 ballots, and one additional ballot was hand-carried to the registrar’s office at 6 p.m.
Other than that, Riddlemoser said, the Postal Service “said repeatedly the rest of the day that they had no more mail for us.” The 55 ballots showed up the next day at 10 a.m.
“There is no possible way in my military mind that these ballots should not have been available to us on Election Day before close-of-polls,” Riddlemoser said in the email, which was attached to the lawsuit as an exhibit. Riddlemoser is a retired Air Force colonel. “How can there be zero, zero, zero — all afternoon and evening and then suddenly 55?”
Parker Slaybaugh, a spokesman for Del. M. Kirkland Cox, a Colonial Heights Republican in line to be the next House speaker if the GOP majority holds, said the Stafford Electoral Board, which has a 2-1 Democratic majority, applied the law correctly by rejecting the disputed ballots.
“You don’t get to pick and choose which late ballots to count, otherwise you will have chaos across the entire state,” Slaybaugh said. “It is unfortunate that Democrats misled people about the types of ballots at issue and continue to pursue unnecessary litigation over ballots even they admit missed the deadline required by law.”
Elias said he’s exploring a second potential legal issue in the 28th District involving split precincts in the city of Fredericksburg that may have caused an estimated 668 votes to be cast in the wrong House district.
“This is not something that we have drawn a firm conclusion on. It is something we are investigating,” Elias said, adding that he has sent a letter to state election officials asking for an explanation.
Democrats also are closely monitoring vote totals in two other House races, the 40th District in Northern Virginia and the 94th District in Newport News.
“The majority is still in play,” said House Minority Leader David J. Toscano, D-Charlottesville.