WASHINGTON — Democrat Joshua Cole could ask the House of Delegates Tuesday to order a redo of the 28th District race that Republican Bob Thomas won by 73 votes, after at least 147 people voted in the wrong Nov. 7 House races in the Fredericksburg area.
Multiple people on both sides of the aisle believed Cole was likely to file a contest of the election with the clerk of the House Tuesday, triggering a formal review that is handled somewhat like a lawsuit. Cole had three days after the recount to file the contest, which Democrats believe extended to Tuesday due to the Christmas holiday.
Cole was still deciding whether to file the contest on Monday, he said.
If the contest is filed, the full House of Delegates would eventually vote to confirm Thomas as the winner, to seat Cole, or to order a new election. The decision would come after a House committee reviews the claims and any response and presents its conclusions.
“My grandmother would tell us ‘if they come for one of us, they come for us all,’ so if anyone received an erroneous ballot in the 28th District, we all did, and so the entire race is tainted,” Cole said last Thursday after the recount confirmed Thomas’s victory.
Thomas, a Stafford County supervisor, is looking forward to serving in the General Assembly, but even some people close to the candidates were not completely sure whether Thomas could or should be seated before the contest is decided.
Thomas has a certificate of election that entitles him to be sworn in, so for now he is expected to take office Jan. 10. That is important because the House is now nearly evenly split between the two parties.
Thomas (or Cole) will replace retiring House Speaker Bill Howell who has represented the 28th District since 1988.
In order to win a new election or a reversal of the result in a case like this, Virginia law requires that the problems with the election “have a probable impact on the outcome.”
Thomas has up to 10 days to file an initial response, and the two sides are also entitled to interview witnesses such as elections officials.
Voters closely linked with the House Democratic Caucus have also separately filed a federal lawsuit seeking a new election in the 28th District and an order blocking Thomas from being seated. The next hearing in that case is scheduled for Jan. 5.
At the last hearing in that case, Judge T.S. Ellis suggested that a new election might be the fairest outcome, but that it is likely up to the General Assembly to make that happen.
On Wednesday, a random drawing will determine the winner in a Newport News race that a recount concluded was a tie at 11,608.
If Thomas is seated, the drawing in the 94th District will determine whether Republicans control the chamber 51-49 or if the House is evenly split.
House Democrats have suggested that they could seek to challenge the tied result if Shelly Simonds loses the drawing to Del. David Yancey, but the caucus has declined to detail those plans and there is no clear legal path to do so.
“We believe that when the judges have a chance to consider this again, they will make the right choice to ensure the integrity of the recount process, which would otherwise be broken for all elections to come,” House Democratic Caucus spokesperson Katie Baker said in a statement last week.
While state law bars any appeals or challenges of recounts, there is possible ambiguity in the case of a tie since the law explaining a “determination by lot” ends by saying the loser can request a recount. The apparent intent of that, even some Democratic lawyers said, is apparently not to allow a second recount but instead is to allow a tied race to go to a recount since without the provision there would be no “loser” to file the court documents to trigger the recount process.
Simonds has argued that she was the rightful winner of the recount by one vote because a Republican challenge to a ballot that led to the tie came later than concerns are traditionally raised during recounts in Virginia, and Democrats were not allowed to offer any similar last-minute challenges.
The three-judge recount court counted the ballot that had both candidates bubbles filled in for Yancey based on a small line through the bubble next to Simonds’ name.
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