ALEXANDRIA, Va. — Dueling legal filings have added more layers to Virginia’s election drama as Republicans asked a federal court Wednesday to reject a Democratic lawsuit over dozens of voters who may have been given incorrect ballots meanwhile House Republicans threatened to file a separate case in state court.
Late Tuesday night, the State Board of Elections again delayed certifying the final results in the 28th and 88th House districts in Stafford County and Fredericksburg due to the Democratic lawsuit. The board believes it has until Monday under Virginia law to certify the results.
A federal court hearing by telephone is set for Wednesday afternoon.
In a statement Wednesday, Del. Kirk Cox said House Republicans plan to ask the Virginia Supreme Court to order the board to certify the results as submitted if the board does not act on its own Monday.
If the results are certified, Republicans would control the House of Delegates 51-49. However three expected recounts or possible Democratic efforts to request a rerun of an election could change the outcome.
In the federal lawsuit, Republicans argue that despite the 82-vote margin in the 28th District race to replace retiring House Speaker Bill Howell any errors are entirely a state issue that should not be addressed in federal court. The brief said because voters did get to cast a ballot, even if it may have been the wrong one, their right to vote was not denied for federal purposes.
Democrats cite at least 83 registered voters who were assigned to the wrong House District in Fredericksburg who should be allowed to vote in the correct race, the suit argues.
“The Code of Virginia sets out a clear process for handling questions about elections, but that process cannot begin until the board certifies the results, a ministerial function that does not require them to exercise any independent judgment,” Cox said in a statement.
“Once the board has certified, candidates may request a recount or file a contest, or both. Those clear, statutory processes, not a federal court, are the proper forum for resolving any issues with a Virginia election,” Cox said.
If Republicans do end up with a majority, they plan to elect Cox as House speaker.
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