RICHMOND — The morning after an Election Day that left control of Virginia's House of Delegates in doubt, the U.S. Postal Service delivered 55 absentee ballots to Stafford County Registrar Greg Riddlemoser.
The ballots, which arrived at 10 a.m. on Nov. 8, were 15 hours too late. Under state law, they needed to arrive by 7 the night before — the hour polls closed — to be counted in a tight delegate race that could determine whether Republicans hang on to power in the lower chamber.
But Riddlemoser, whose office checked in with the post office hourly until polls closed, was convinced something had gone wrong when 55 landed all at once.
"There is no possible way in my military mind that these ballots should not have been available to us on Election Day before close-of-polls," the retired Air Force colonel wrote in an email to Virginia Elections Commissioner Edgardo Cortés. "How can there be zero, zero, zero — all afternoon and evening and then suddenly 55? We have a BOS [Board of Supervisors] race with a tiny delta. We have a HOD race with a very small delta. Maybe 55 would have swung one or both?"
Despite those concerns, Riddlemoser said the votes could not be counted without violating state law. By a 2-to-1 vote, Stafford's electoral board agreed on Tuesday not to count them.
Now Riddlemoser's email — suggesting that the post office somehow mishandled the ballots — has literally become Exhibit A in a federal lawsuit. Democrats filed it late Tuesday to challenge the outcome in the race for the District 28 seat being vacated by retiring House speaker William J. Howell (R-Stafford). As it stands now, Republican Robert Thomas leads Democrat Joshua Cole by 82 votes.
"Virginians should not be disenfranchised by errors made by government officials," said Marc Elias, the lawyer for the Virginia House Democratic Caucus, which filed the suit on Cole's behalf in federal court in Alexandria. It seeks to have the 55 ballots counted.
A spokesman for House Majority Leader M. Kirkland Cox (R- Colonial Heights), who is in line to become speaker if the GOP holds its majority, called the lawsuit "unnecessary" given that Democrats acknowledge that the absentee ballots arrived after the state deadline.
"The law on absentee ballots is clear and was applied fairly by a Democrat-controlled Electoral Board," said Parker Slaybaugh, Cox's spokesman. "You don't get to pick and choose which late ballots to count; otherwise you will have chaos across the entire state."
The Postal Service is aware of the matter and is looking into it, spokeswoman Darleen Reid said.
In a letter to state elections officials, Elias also asserted that 668 people eligible to vote in District 28 were given ballots for the wrong House race.
He said the claim was based on vote totals posted on the state elections website. The site indicates that two Fredericksburg precincts that are entirely within District 28 erroneously operated as a split precinct, with some voters given ballots for the District 88 race and others for the District 28 contest, Elias said. A total of 354 voters in Precinct 402 and 314 voters in Precinct 201 cast ballots in the District 88 race, a four-way contest that Del. Mark Cole (R-Fredericksburg) won with 14,022 votes over Democrat Steve Aycock (9,918 votes) and two distant third-party contenders.
"Obviously it is not a tolerable situation for 668 voters to be disenfranchised," Elias said.
He has called on the state Board of Elections to exclude votes cast in the two precincts from the District 88 totals, decline to certify a winner in District 28, and take other, unspecified steps to ensure all Virginians had the opportunity to vote for the delegate who represents them in Richmond.
The Fredericksburg Electoral Board issued a statement Wednesday acknowledging that the board and registrar received complaints "regarding House Districts 28 and 88." The board conveyed those complaints to Cortés, who advised them to seek counsel from the Fredericksburg city attorney. "The City Attorney advised the Electoral Board to proceed with the election," the statement said.
Cortés said Fredericksburg officials called his office late in the afternoon on Election Day, saying, "We may have an issue here."
He said the call came after a voter in one of the two precincts questioned whether he or she had been given the proper ballot.
"Somebody thought they should be in a different district than what they got the ballot for," said Cortés, who said the problem arose in an area that borders both District 88 and District 28. Cortés said the question could not be immediately resolved, but his office has offered to help Fredericksburg sort it out.
Republicans also were investigating.
"We are aware the Democrats believe there is an issue and are looking into it as well," Slaybaugh said.
Slaybaugh said Democrats had "misled people about the types of ballots at issue" in Stafford.
Democratic Party leaders initially asserted that the 55 absentee ballots were from active-duty members of the military. They held a conference call to highlight the matter on Veterans Day, assembling legislators with military backgrounds to speak on the issue.
But Stafford officials said the ballots came from absentee voters of all stripes.
On Wednesday, Democrats said they had based that claim on information that had come from people "on the ground" in Stafford. Elias said the lawsuit does not claim the ballots were "all military," although some may be.
"Whether military or civilian, the right to vote is equal in all cases," he said.
The District 28 race is one of three likely headed for a state-funded recount after the Nov. 7 election, in which Democrats made huge gains in the House and swept statewide offices for governor, lieutenant governor and attorney general.
Before the election, Republicans boasted a 66-to-34 majority in Richmond's lower chamber. Now, the count is 49 Democrats and 51 Republicans, putting Democrats within striking distance of taking control. They need one more victory to force a power-sharing deal with Republicans and two more to take the reins of the chamber for the first time since 2000. Republicans hold narrow leads in the Thomas-Cole contest and two other contested races. In those, Del. Timothy D. Hugo (R-Fairfax) has a 106-vote lead over Democrat Donte Tanner, while Del. David E. Yancey (R-Newport News) is up just 10 votes over Democrat Shelly Simonds.