I just got off a call (see audio below) with Virginia House Democratic Leader David Toscano and Marc Elias of Perkins Coie’s Political Law practice regarding some VERY serious concerns about the election last Tuesday in Virginia HD-28 (Fredericksburg City, Stafford County). Note that the State Board of Elections website currently shows Republican Bob Thomas, Jr. leading Democrat Joshua Cole by a slim margin of 82 votes (11,842-11,760). However, there are now not only questions about absentee ballots that were not counted in Stafford County, but also – as Marc Elias explains – very serious questions regarding possibly illegitimate “split precincts” in Fredericksburg City.
On the first issue, Elias stressed that Stafford County must count the 55 absentee ballots that have not yet been counted and that those 55 Virginians “should not be disenfranchised because of errors made by government officials.” Elias added that the Stafford County Registrar himself stated, “There is no possible way that these ballots should not have been available to the Registrar on Election Day before close of polls.” Why is this significant? Because, as Elias explained, “ballots that are delivered to the Registrar before the close of polls are lawful ballots to be counted in Virginia,” but that “some government error” negated the ability of the voters (who “did everything right”) to have their votes counted. Elias further explained that, “in this country and under the U.S. constitution, errors by the government don’t get to be the ground to disenfranchise voters.” Elias concluded that “the rights of these [military and other] voters under the 1st and 14th amendment [are] going to prevail and these ballots will be counted.”
On the second issue, regarding the “split precincts” in Fredericksburg City, Elias explained that this “seems to have resulted in a…significant number of voters in HD-28 being denied their right to vote in the HD-28 delegate race.” Elias said “we think it affects around 650 voters, which is obviously more than the margin that currently separates the two candidates.” The problem, according to Elias, is that only one “split precinct” (between HD-28 and HD-88) is permitted in Fredericksburg under Virginia’s 2011 redistricting statute. Elias continued (bolding added by me for emphasis):
The problem is, when you look at the unofficial results of the election [currently posted on the SBE website], it actually shows three precincts in Fredericksburg that were split between HD-28 and HD-88. The two extra split precincts are precincts that the statute says are to be entirely within HD-28. That means that ALL of the voters in those precincts should have been given ballots to vote for HD-28 and NONE of them should have been given ballots to vote in HD-88. The [SBE website] seems to suggest the opposite of that, which is that some were given for 28 and some were given for 88. Specifically, the unofficial results show 688 votes that were cast in HD-88 between the two precincts combined. Now, this is a very very serious issue, because…that is a state law, and Registrars are not free to ignore the redistricting statutes. Statutes are there to delineate who cast ballots in what districts…This is not something we have drawn a firm conclusion on, it is something we are investigating. It may be that there is a simple explanation for this…We’re being very methodical about looking at this. But if you look at the website, it appears 668 voters were denied their right to vote for the delegate who represents them by law in the 28th district. Now obviously, 668 votes is a far greater number than the number of votes that decided the election in HD-28. And if you look at the unofficial results there, based on a partisan analysis, it certainly would seem to change the outcome of the election…be race determinative…Obviously, it is not a tolerable situation for 668 voters to be disenfranchised – period – and particularly not in an election where those votes likely were race determinative of the outcome.
P.S. I just checked the State Board of Elections website, and in HD-88, precincts 201 and 402 in Fredericksburg went for the Democratic candidate by a 160-118 and 239-83 margin, respectively. So yeah, if those were supposed to be in HD-28, it would make a big difference indeed!