As Va. sets to certify election results, expert says ‘something really went wrong’

WASHINGTON — As Virginia’s State Board of Elections prepares to certify House of Delegates results Monday that the Department of Elections has serious questions about, an expert said it is possible that not all of the serious problems, which appear to date back years, have been exposed yet.

WTOP learned Friday that at least 147 people in Stafford County and Fredericksburg voted in the wrong race Nov. 7, a Department of Elections investigation has confirmed so far. During a court hearing earlier last week, the state disclosed that a total of at least 384 registered voters were assigned to the wrong House district. The new details of the investigation showed that the issues confirmed during this limited investigation include voters tied to the 28th, 88th and now the 2nd House District.

The Department of Elections disclosed Wednesday that at least 384 registered voters in the Fredericksburg area were misassigned one way or the other between the 28th House District and the 88th. The 28th District race is separated by just 82 votes and could determine which party controls the House of Delegates.

“I continue to look at this ‘at least’ number, so something really went wrong in House District 28 and the adjoining district, and when I look back at the election results I suspect that whatever was happening there was not isolated to the 2017 election,” Michael McDonald, an associate professor of political science at the University of Florida and a former George Mason University professor, said in an interview.

The Department of Elections generally has not audited the information entered into the state voter registration database by local elections officials, and only began using modern mapping technology on a limited basis last year. The current state investigation over the last two weeks or so has focused only on the Fredericksburg area, where the 28th District race is separated by just 82 votes and could determine which party controls the House of Delegates.

Republican Bob Thomas leads the 28th District race in Stafford and Fredericksburg by just 82 votes. Lawyers for the Board of Elections said during a court hearing last week that the board has no choice under state law but to certify Monday despite “clear information … that there were irregularities.”

“They will, I suspect, have some significant heartburn about that … but the code does not give them the authority [to do anything else],” Assistant Attorney General Anna Birkenheier said.

The State Board of Elections had been set to certify the results last Monday, but delayed the action to allow for further investigation into the misassigned voters.

After the certification, the losing candidate, Democrat Joshua Cole, can request a recount in Stafford County Circuit Court. He could follow that up with a process known as a “contest,” which asks the House of Delegates to order a new election. Some of the Democratic voters who were given ballots listing the wrong race are also expected to file federal lawsuits seeking a new election.

“I’m sure that the legislature would first rather, if there’s court action going on, just let the courts play it out rather than have the legislature make a very highly political decision,” McDonald said.

That’s one reason U.S. District Judge T.S. Ellis said last week that it could be difficult to rely on the partisan General Assembly for a decision such as this.

If the case is fully heard in federal court, the judge could order a new election if the problems in the race rise to a systemic level — as opposed to what courts have found to be garden-variety election mistakes.

“What is probably not going to happen would be some sort of statistical adjustment of the election results making projections on how the people who were affected would have voted,” McDonald said.

The political make-up in the General Assembly could change dramatically if Democrats flip results in the 28th District or two other races that are expected to go to recounts.

“It’s possible that the Democrats in the House of Delegates could either be tied or get a majority somehow; there’s still a lot of litigation left to hear, and recounts, so we don’t know where everything’s going yet,” McDonald said.

If the recounts and other challenges do not change any results, Republicans would control the chamber 51-49.

In a separate race, Democrat Laura Sellers plans to file a recount request with the Stafford County Circuit Court Monday in her race against Republican Del. Mark Dudenhefer for the county’s Garrisonville District supervisor seat. Dudenhefer leads by 12 votes in the results the county electoral board certified Nov. 14.

Why now?

This is the first tight general election in either of the state House districts at issue since lines were redrawn after the 2010 census. In the 28th District, Republican House Speaker Bill Howell chose to retire this year. In the 88th, Republican Mark Cole is expected to again win re-election in any circumstance.

“It’s likely that people were being misassigned to districts at least since 2011,” McDonald said. “There are just odd patterns in the election results.”

Even in this election, one precinct in Fredericksburg shows only a single vote cast in the 88th District race.

“When I look at the election results, I see patterns to say that this was something that was systemic, that was happening over multiple elections. We don’t know if there are other districts that have been affected in Fredericksburg, other elections that may have been effected as well,” McDonald said.

The issue was only exposed this year after Democratic voters who knew what district they were supposed to be voting in complained about getting the wrong ballot. A city attorney told Fredericksburg elections officials to keep the polls open.

Based on what is already known, before any additional investigations, this basic elections issue could have a larger impact than many other more high profile issues, especially since a recount or redo of the 28th District election could swing control of the House of Delegates from Republicans to Democrats.

“The possibility of people who’ve been misassigned to a precinct is greater than the incidence of voter fraud in Virginia at this point, so … if we’re worried about different aspects of elections, why would we place more emphasis on one potential problem, which might be fraud, over another one, which actually has a larger effect, which is a misassignment of voters,” McDonald said.

One potential legislative change that could reduce the likelihood of similar problems in the future is a requirement, similar to one in some other states, that local precinct boundaries be entirely within one state-level district or another.

“If you just had every precinct line up with every district, you would know that this precinct is supposed to get this particular sort of ballot, but that doesn’t happen in Virginia,” McDonald said.

Nationwide issue?

“We really don’t know the extent to which this sort of misassignment of voters happens across the country, because we actually don’t have accurate precinct boundaries available for the entire country,” McDonald said.

He is part of a team attempting to collect that information. He said that’s been simple in some parts of the country, nearly impossible in others.

“I’ve never seen this, so … I am not aware of any audit that’s taken place,” he said. “There’s a real gap here in our knowledge about how elections work, which is these boundaries. It seems very simple … but, as it turns out, that’s a much more complicated problem when you go locality to locality across the country.”

McDonald knew of no previous examples where voters have been found to be assigned to the wrong state House districts, although he had heard some isolated anecdotal reports of issues for local-level boundaries.

“We don’t know how often this happens. What I do suspect, though, is that it does happen infrequently,” McDonald said.

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