ALEXANDRIA—A federal judge declined Friday night to order a redo of the controversial election in which Republican Del.-elect Bob Thomas defeated Democrat Joshua Cole for the 28th District House of Delegates seat.
That means Republicans will hold a 51-49 majority in the House of Delegates when the General Assembly convenes Wednesday, giving the GOP the ability to appoint a House speaker and make committee assignments despite a surprising wave of Democratic victories on Nov. 7.
Democratic-aligned law firm Perkins Coie filed the suit in U.S. District Court in Alexandria on behalf of several Fredericksburg voters in light of revelations that at least 147 residents in the city and Stafford County received ballots listing the wrong House candidates. Thomas defeated Cole by just 73 votes for the 28th District seat that includes parts of Fredericksburg and Stafford.
At a hearing Friday, U.S. District Judge T.S. Ellis said the lawsuit requesting the new election alleged what he considered to be “garden variety irregularities” that do not warrant federal intervention in a state election. He did not dismiss the case entirely, though he indicated that the plaintiffs would need to prove that the election represented a “broad-gauge, fundamental unfairness that erodes the democratic process.”
That’s a high threshold, with the judge saying he would order a new election if, say, a large number of people had been denied the right to vote because of their race. “Let me be clear that if the facts were different, I wouldn’t hesitate to call for a new election,” Judge Ellis said.
An attorney for the plaintiffs said they are weighing their options, which could include appealing the judge’s ruling.
In a statement after the ruling, Thomas—who will be sworn in Wednesday—said that “campaigning is behind us, and it’s time to get to work.”
“I want the people of Stafford and Fredericksburg to know whether you voted for me or not, I will represent you with honor in Richmond and champion issues important to the 28th district,” he added.
Thomas, who previously served on the Stafford Board of Supervisors, will fill the seat held by retiring House Speaker Bill Howell, who endorsed him.
Republican Del. Kirk Cox, who hopes to become House speaker, said in a statement that the ruling reflects “what we have been saying for nearly two months now—Thomas was the rightful winner in this election, and we are thrilled to welcome him to Richmond.”
Judge Ellis noted that the losing candidate could have contested the results to the General Assembly under state law. After an attorney for the plaintiffs described a court-ordered special election as the only remedy, Ellis said: “That didn’t have to be the case.”
Cole announced recently that he would not appeal to the General Assembly, saying in a statement that voters should choose their delegates, not “100 politicians in Richmond.” He could not immediately be reached for comment Friday night.
The long list of defendants in the federal suit included registrars in Fredericksburg and Stafford and the State Board of Elections.
Attorneys for the plaintiffs blamed the wrongly assigned ballots on “deliberate acts and omissions” by local elections officials, citing emails and meeting minutes showing the Fredericksburg Registrar’s Office was aware of similar problems for more than two years.
In an email April 2015, a then-spokesman for Howell wrote that several 28th District voters had been erroneously assigned to the 88th District. Later, a Virginia Department of Elections official wrote that then-Registrar Juanita Pitchford, who has since passed away, fixed the problem and sent letters to affected voters.
An attorney for the registrars said that issue from 2015 is unrelated to last year’s alleged mistakes. And he wrote in court papers that unintentional “data entry errors are inevitable” because of the large number of addresses involved.
“The alleged errors, while certainly undesirable, do not establish that a constitutional violation has occurred, and do not warrant federal intervention into this election for state office,” Richmond attorney Michael Matheson wrote in court papers.
He also wrote that Fredericksburg voters Dolores and Kenneth Lecky, two of the lawsuit’s plaintiffs, should have known they had been assigned to the wrong House district ahead of the general election. That’s because both voted in June’s Democratic primary, where ballots would have listed 88th District candidate Steve Aycock, attorney Matheson claimed.
“Had it been brought to the registrar’s attention at that time … this whole lawsuit could have been avoided,” he wrote.
The plaintiffs’ attorneys disputed that, writing that the Democratic primary ballot did not include Aycock because he was the only 88th District candidate seeking the party’s nomination. “Astonishingly, the registrars’ opposition … blames the Leckys for failing to uncover the election officials’ systematic errors,” Washington attorney Aria Branch wrote.
The plaintiff’s attorneys also criticized the city’s response to reports of incorrect ballots on Election Day, writing that officials would not let the affected voters cast provisional ballots or “take any remedial steps to address the issue.”
“Incredibly, the [Electoral Board] decided on Election Day that the eventual prospect of a contest before the House of Delegates was a sufficient remedy for voters whose constitutional rights were being infringed before their very eyes,” the attorneys wrote.
After reports of misassigned voters, City Attorney Kathleen Dooley wrote an email advising elections officials to continue to distribute ballots in line with the State Board of Elections database, which she said is “entitled to a presumption of validity.”
She also recommended against offering provisional ballots to potentially affected voters and noted that an unsuccessful candidate can contest the result under state law if the database is incorrect.