RICHMOND — Virginia's Board of Elections on Monday unanimously certified two state legislative races — in which 147 voters cast ballots in the wrong district — in favor of the Republicans in both contests.
The decision means that Republicans control 51 seats in the House of Delegates while Democrats control 49.
The action shuts down one potential route, but it does not end Democrats' hopes to win control of the chamber.
In letters sent over the weekend, Democrats had urged the Democratic-controlled board to hold off on certification because of the irregularities, particularly since one of the two races — in District 28 — was a squeaker that could determine which party takes charge of the House.
In that race, Republican Robert Thomas leads Democrat Joshua Cole by 82 votes in the contest to fill the seat being vacated by retiring Speaker William J. Howell (R-Stafford).
After conferring privately with lawyers for about 45 minutes, the board's three members said they were required by statute to certify the results by Monday's deadline — despite irregularities that Chairman James Alcorn said he expects the courts or the House to eventually sort out.
"What I want at the end of the process is that the voters trust that the outcome of the election — the winner of the election — is who was elected by the eligible voters," Alcorn said. "And so I would say we are not to the end of that process."
Alcorn also said the board does not have the power to order any of the available remedies, such as a new election, which a judge could do. The losing candidate also could file a contest with the House, which could require a new election or pick a winner itself through a floor vote.
And three of the races won by Republicans — including District 28 — are probably headed for a recount, so Democrats may have other opportunities to pick up a seat. In the 40th District, Del. Timothy D. Hugo (R-Fairfax) has a 106-vote lead over Democrat Donte Tanner, while in the 94th District, Del. David E. Yancey (R-Newport News) is up just 10 votes over Democrat Shelly Simonds.
Monday's decision came three weeks after Election Day, and a week after the board had certified election results in 98 other House seats. The board initially held off on the two Fredericksburg-area House seats amid revelations that some voters in the 28th and 88th districts had been erroneously assigned to the wrong race.
The assignment errors affect both races, but the focus has been on the 28th because the margin of victory was just 82 votes. It is one of three tight GOP wins statewide that are likely headed for recounts.
Democrats would 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.
The board's decision was a disappointment to Democrats and their allies, who since Nov. 7 have filed three lawsuits asserting that 28th District voters had been disenfranchised in various ways.
Two of the cases were dismissed.
In the third case, a federal judge rejected Democrats' request for a temporary restraining order to block the state board from certifying the 28th District election. But he did not dismiss the case, leaving Democrats the option of asking the judge for a new election.
"The State Board acknowledged today what we have long known: the election results in House District 28 are marred by irregularities," said Marc E. Elias, attorney for Cole and the House Democratic Caucus. "[W]e disagree with the Board's decision to certify in spite of these irregularities, and we will continue to assess our options to remedy this wrong."
House Republicans had threatened to file a lawsuit of their own if the board did not certify the results by Monday.
"We are pleased the State Board of Elections finally fulfilled its statutory duty and unanimously certified the election results in House Districts 28 and 88, but are disappointed it took over a week, a strong signal from a federal judge, and the threat of a state suit to get them to act," said Del. Kirk Cox (R-Colonial Heights), in line to become speaker if the GOP holds the majority. "With this step, we can now proceed to handling any other questions through the proper venues outlined in state law, as members of State Board said multiple times today."
Partisan tensions appeared to be running high at the start of Monday's meeting, when Alcorn made a motion to retreat into executive session so members could confer with lawyers. Republican Clara Belle Wheeler abstained from voting on that motion.
But she came out of the closed-door meeting with a smile and soon voted, along with Alcorn and Singleton McAllister, to certify the results.
"I'm proud of this board," Wheeler said afterward. "We, the state board, fulfilled our obligation to the code and to the people to certify the election."
In the 88th District, Del. Mark Cole (R-Fredericksburg) — no relation to Joshua Cole — beat Democrat Steve Aycock by more than 4,000 votes.
Given Mark Cole's comfortable margin, the voter assignment errors were not expected to upend his race. But if his election had remained uncertified, Mark Cole would not have been seated when the legislature convenes in January. That would have evenly split the chamber, 49 seats controlled by Republicans and 49 controlled by Democrats.
Republicans boasted a 66-to-34 majority going into the Nov. 7 elections.
At a meeting last week, state Elections Commissioner Edgardo Cortés said that former registrar Juanita Pitchford erroneously assigned 83 voters from the 28th House District to the 88th. After further investigation, he said the state had discovered a total of 384 misassigned voters, including some in the neighboring 2nd House District. Of those, 147 of the misassigned voters cast ballots.
Elections officials said they are not sure why Pitchford, who died in April, made the changes.