WASHINGTON — Democrat Joshua Cole’s campaign has filed a federal lawsuit aiming to get late-arriving absentee ballots counted in Stafford County.
The legal maneuver could also delay final certification of election results long enough for Democratic lawyers to figure out whether more than 600 voters in the Fredericksburg part of the contested House of Delegates district were given the wrong ballots.
Cole, who trails Republican Supervisor Bob Thomas by 82 votes in the results certified by the Stafford County and Fredericksburg electoral boards, is one of three Democrats trailing in tight House races. For now, Republicans would hang on to control of the chamber with a 51-49 majority.
Del. David Toscano of Charlottesville, the House Democratic leader, said he is hopeful that the final 10-vote margin in House District 94 in Newport News could be flipped in a recount.
The Democrats’ election lawyer, Marc Elias, was also hopeful, given the votes Democrats picked up in many precincts during the statewide recount four years ago in the attorney general’s race.
The third race likely to go to a recount over the next few weeks is in the 40th House District in Fairfax and Prince William counties where Republican Del. Tim Hugo maintains a 106-vote lead.
In Fredericksburg, Elias said those results appear to show about 668 votes at precincts that Virginia’s redistricting statutes say are in outgoing House Speaker Bill Howell’s 28th District that instead were cast in Republican Del. Mark Cole’s re-election victory in the 88th District.
Elias, as the lawyer for the House Democratic Caucus, asked the state board of elections in a letter to “take all steps necessary to resolve these discrepancies.”
Asked what those steps would be, Elias said Democrats are first waiting to confirm that some voters were given the wrong ballots at Fredericksburg precincts 201 and 402.
However, the letter to the board asks that the results in House District 28 not be certified as scheduled Monday among other changes. Following a strictly party-line basis, if the number of votes for Democrat Steve Aycock had instead been cast for Joshua Cole and the Republican votes for 88th District incumbent Mark Cole had instead been cast for Bob Thomas, Joshua Cole would be leading in the 28th District.
While Elias said Democrats learned of the potentially incorrect precinct splits only since Election Day, state board of elections records show the same precincts were also split between the 28th and 88th districts in each election since new maps were drawn in 2011.
None of those general elections were close races though, so while rumors had persisted that lines were incorrectly drawn for voting purposes, it is possible any issue did not come to the attention of higher-ranking party officials.
The state board of elections and the Fredericksburg Department of Elections did not immediately respond to requests for comment. The state board of elections is due to convene Monday to certify the statewide vote results.
Democrats have not yet concluded definitively that the lines are incorrect, so any delay tied to a separate federal lawsuit filed late Tuesday over absentee ballots in Stafford County could buy additional time for a resolution.
That separate lawsuit, filed by Cole’s campaign, focuses on the 55 voters whose absentee ballots arrived at the Stafford County Registrar’s office after the 7 p.m. election night legal deadline to be counted. Elias argues constitutional due process rights require the votes be counted even though they missed the deadline because, he said, the delay was purely caused by some government entity like the Postal Service or a county staffer.
The lawsuit challenges the application of the law in this case and does not aim to challenge the law itself that requires all ballots be received by the close of polls in order to be counted.
The 55 late absentee ballots are not necessarily in the 28th House District or in the Garrisonville District, where outgoing Republican Del. Mark Dudenhefer leads Democrat Laura Sellers by just 12 votes in another race expected to end up in a recount.
