Why Virginia Won't Certify Election Results That Could Change Its Balance of Power

by | November 21, 2017

By Jeff Branscome

Controversy continued to grow Monday over a close House of Delegates race in the Fredericksburg region that could determine control of the chamber.

The State Board of Elections declined to certify winners in the 28th and 88th districts because at least 83 registered voters in Fredericksburg had apparently been assigned to the wrong House district. Republican Bob Thomas holds an 82-vote lead over Democrat Joshua Cole in the 28th District contest to succeed House Speaker Bill Howell, R -- Stafford County.

Virginia Commissioner of Elections Edgardo Cortés, a Democratic appointee, described the problem as "significant" in light of the close race, but said he did not know how many of the affected voters actually cast ballots in the Nov. 7 election.

"In this instance, because of the exceptionally close margin and what appears to be a pretty significant error at the local level by a registrar, this is a problem," he said. The former Fredericksburg registrar who apparently oversaw the incorrect changes in 2016 died earlier this year.

But Republican Del. Kirk Cox, the House speaker-designee, accused the State Board of Elections of exceeding its authority and argued that the errors, if true, would not change the result. The state knows how many of the registered voters at issue participated in the election, and that information would "reveal that Bob Thomas is the rightful winner ... under any scenario," he said in a statement.

"Each and every one of the 83 registered voters in question, if they did in fact vote in the wrong district, would have to have participated in this election, voted in the wrong district, and voted for Delegate-elect Thomas' opponent in order to change the outcome, all of which are unlikely," Cox stated.

The State Board of Elections voted to adjourn until Wednesday "while we learn more about the situation," Chairman James Alcorn said in an email to The Free Lance -- Star. Virginia code lets the state board adjourn for up to three up days "if we are not able to ascertain the results" at its post-Election Day meeting, he added.

The scope of the mistakes is unclear, though it appears to be much less severe than a claim last week by Democrats that more than 600 Fredericksburg voters received ballots for the wrong House district. A Republican leader called that allegation "demonstrably false."

Eric Sundberg, Cole's campaign manager, said he thinks about 100 to 125 voters--most of whom live on Charles and Charlotte streets in downtown Fredericksburg--received the wrong ballots. About half mistakenly got 88th District ballots instead of ballots for the 28th District, and vice versa for the rest, he said.

The Democrat's campaign continues to weigh its options. "I think, regardless of what action we take, we're going to be motivated by making sure that the right thing is done, making sure everyone's vote counted, and that this isn't an issue in the future," Sundberg said.

Thomas did not immediately return a call for comment.

Fredericksburg City Attorney Kathleen Dooley said in an email about 2:30 p.m. Monday that the electoral board and registrar had not received "official communication" from the State Board of Elections about the matter. She said she did not anticipate a statement from Fredericksburg officials.

"The question of the result of the election for the House 28 and 88 districts will be decided in some appropriate venue," she wrote. "At that point, the Electoral Board, the Registrar, and the City are all committed to carrying out the direction of the appropriate authority."

State Board of Elections Vice Chairwoman Clara Belle Wheeler, a Republican, said she thinks the state board has no choice but to certify the results under Virginia law. "And then if someone wants to contest the results, they can do that through the court system," she said.

The House Democratic Caucus released a brief statement calling that state board's decision "judicious." "We are currently assessing our legal options," the statement continued.

Del. Mark Cole, R-Spotsylvania County, who retained his 88th District seat with 52.7 percent of the vote in a four-way race, said he thought the Board of Elections acted inappropriately by refusing to certify him and Thomas as the winners.

"It's not surprising for the Democrats to try to win in court what they couldn't win in the election," he said. "I'm sure there will be more proceedings in the next few weeks to try to set things right."

Last week, a federal judge refused to order the Stafford Electoral Board to count 55 absentee ballots that arrived a day after the deadline. The Cole campaign had requested the order in a lawsuit claiming that an "apparent error" by the U.S. Postal Service caused the delay.

The 28th District included all of Fredericksburg until the Republican-controlled General Assembly divided up the city between the 28th and 88th districts in 2011. That led to "split" precincts, where voters at the same polling place cast ballots for difference House races.

Critics say gerrymandering, or the drawing of political boundaries for partisan gain, is to blame for the confusion in Fredericksburg.

A similar problem happened in Spotsylvania five years ago, when voters at a split precinct received ballots for the wrong U.S. House of Representatives race. Officials had to invalidate nearly 200 congressional votes, though the outcome of that election was never in question.

The Richmond Times-Dispatch contributed to this article.

(c)2017 The Free Lance-Star (Fredericksburg, Va.)