RICHMOND — Virginia's Board of Elections voted unanimously Monday to delay certification of two House races, amid new claims that dozens of voters got the wrong ballot in a tight contest that could determine control of the legislature's lower chamber.
The board called a "time out" after state Elections Commissioner Edgardo Cortés announced that in April 2016, Fredericksburg registrar Juanita Pitchford erroneously assigned 83 voters from the 28th House District to the 88th.
It was not clear how many of the 83 voters actually cast ballots on Nov. 7, but the 28th District race is tight. Republican Robert Thomas leads Democrat Joshua Cole by 82 votes in the contest to fill the seat held by retiring Speaker William J. Howell (R-Stafford).
Jonathan A. Gerlach, a lawyer for Cole who lives in Fredericksburg, told the board that he had found evidence that more than 100 Fredericksburg voters had been mis-classified.
Noting the closeness of the race and legal action threatened by Democratic attorneys, the board decided to certify only the state's 98 other House races and the contests for governor, lieutenant governor and attorney general. Monday was the state deadline to certify the election under state law, but the code allows the board up to three more days if it is "unable to ascertain the results."
"Let's just take a time out," said board chairman James Alcorn. "Our goal is to make sure voters trust the election results."
The delay drew sharp criticism from John Findlay, executive director of the Republican Party of Virginia.
"Welcome to Venezuela," Findlay said afterward. "This is how elections happen in Venezuela, Soviet Russia and now the commonwealth of Virginia. We don't like the winners, we're gonna have a new election."
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 the House of Delegates. 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 all three of the close races. In the other two, 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.
Lawyers for Cole and the NAACP Legal Defense and Education Fund last week tried unsuccessfully to challenge the results in court. One lawsuit sought to have 55 late-arriving absentee ballots counted. The other asserted that voters who cast provisional ballots on Election Day had been given "conflicting and misleading instructions." Both complaints were dismissed.
Marc Elias, one of the lawyers for Cole, also complained last week in a letter to the state board that 668 Fredericksburg voters had been given the wrong ballots, causing them to vote in the District 88 that Del. Mark Cole (R-Fredericksburg) won handily, rather than in the District 28 squeaker. Elias asserted that Fredericksburg officials had improperly split two precincts that are entirely within District 28, giving some voters ballots for that House race and others ballots for the District 88 contest.
But on Monday, Cortés confirmed that the precincts were properly split.
Yet a new question arose over the weekend, which Elias spelled out in a letter emailed to the board Monday ahead of the meeting. Elias was no longer contending that the precincts should not have been split, but that some voters within those precincts received the wrong ballot. He said that was because elections records assign some voters to the wrong district.
Clara Belle Wheeler, the lone Republican on the three-member board, seemed initially reluctant to go along with a delay. But after Cortés explained that Pitchford appeared to have mis-assigned some voters in 2016, Wheeler agreed to hold off on certification. Pitchford died in April.
"I'm confused, I guess, as everyone," Wheeler said.
Del. Kirk Cox (R-Colonial Heights), who will become speaker if Republicans hold onto the majority, said the 83 voters would not likely swing the race even they should have voted in District 28.
"Each and every one of the 83 registered voters in question, if they did in fact vote in the wrong district, would have to have participated in this election, voted in the wrong district, and voted for Delegate-elect Thomas' opponent in order to change the outcome, all of which are unlikely," Cox said in a written statement. "The Department of Elections knows right now how many of these registrants actually cast ballots and they should make that information available right away. Doing so will reveal that Bob Thomas is the rightful winner of this election, under any scenario."
Cortés said it was not yet clear how many of the 83 residents voted.
"The State Board of Elections today acknowledged that at least 83 people were mis-assigned in the system and thus possibly disenfranchised from voting in their appropriate house district," Virginia House Democratic Caucus, which hired Elias to represent Cole, said in written statement. "The State Board of Elections made a judicious decision by delaying certification. We are currently assessing our legal options and will release another statement should we take further action."