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U.S. Judge Ponders Counting of Late Ballots

By Anita Kumar
Washington Post Staff Writer
Tuesday, November 18, 2008

RICHMOND, Nov. 17 -- A federal judge is considering whether to force the state to count thousands of late overseas absentee ballots -- a decision that might affect Virginia's voting procedures in future elections.

However U.S. District Judge Richard L. Williams decides the case, it probably will not alter the outcome of any of the Nov. 4 contests. But the ruling will provide an opportunity for every voter to be heard, according to attorneys who filed a lawsuit seeking to mandate the count.

"A candidate has the right not just to win or lose, but to see his or her votes counted," said William Hurd, an attorney for the Republican Party's presidential candidate, Sen. John McCain.

McCain's campaign team filed the suit before the election, but Williams removed the campaign from the case Monday because he said it did not have standing to sue.

Instead, the U.S. Department of Justice is serving as the plaintiff. The department continued to ask the judge to order the State Board of Elections to count ballots sent by Nov. 4 and received by Nov. 14.

A hearing in U.S. District Court in Richmond is scheduled for Dec. 8.

"This action seeks immediate relief to ensure that Virginia military and overseas voters will have a reasonable chance to have their votes counted in this year's historic election," said Grace Chung Becker, acting assistant attorney general for civil rights.

Alberto Ruisanchez, the Justice Department attorney who argued the case Monday, said the federal government wants to ensure that all votes in the 2008 election are counted and that state officials have the proper training for future elections. If Williams rules that the late ballots must be counted, Hurd said, elections officials will understand that they are accountable and must be more careful in the future.

Under Virginia law, the state is not permitted to count absentee ballots that arrive after polls close on Election Day.

Justice Department and McCain campaign attorneys argued Monday that because some absentee ballots were printed late, they were not mailed in time for the general election. They said the ballots should have been mailed 30 to 45 days in advance.

Localities accused in the lawsuit of sending ballots late include Arlington and Loudoun counties.

Robert A. Dybing, an attorney for members of the State Board of Elections, argued that voters could have used federal write-in ballots.

But Ruisanchez said that write-in ballots are supposed to be for emergencies only and that they are often difficult to find and fill out in combat zones.

More than 500,000 Virginians requested absentee ballots by mail or in person this year.

The State Board of Elections could not say Monday how many absentee ballots came in late. But the McCain campaign estimated the number at more than 5,000; it was unclear how many were from overseas.

Williams previously ordered the state to hold on to the late ballots until he decides whether to count them.

The State Board of Elections is scheduled to meet Nov. 24 to certify election results.

McCain lost to Sen. Barack Obama (D) in Virginia by more than 200,000 votes. Only one Nov. 4 state contest remains close enough that late-counted ballots could make a difference: Rep. Virgil H. Goode Jr. (R) trails Democratic challenger Tom S. Perriello by more than 700 votes in the 5th Congressional District, which stretches from Charlottesville to the North Carolina border. Goode has not conceded and is expected to ask for a recount after results are certified.

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