Four Democratic voters in Virginia are appealing a court decision that cleared the way for Republicans to take control of the state House of Delegates.
At issue is whether errors that led some voters in an extremely close Northern Virginia House race to be given the wrong ballots were so significant that Republican Robert Thomas, the victor, should not be seated when the General Assembly convenes on Wednesday.
Late Friday, U.S. District Judge T.S. Ellis III of the Eastern District of Virginia decided they were not.
The four voters have appealed Ellis's decision to the U.S. Court of Appeals for the 4th Circuit and filed an emergency motion there to stop Thomas from being seated.
"The margin of victory was so small," plaintiff Kenneth Lecky told reporters on a conference call Monday. He and his wife were unable to vote for the Democratic candidate because they were given the wrong ballots. "So it's hard to understand how a judge could rule that this was not consequential."
Thomas defeated Democrat Joshua Cole by 73 votes in Virginia's House District 28 race. But at least 86 voters, including some in a heavily Democratic precinct, were mistakenly issued ballots to vote in the neighboring House District 88, where the Republican won by a wide margin. And 61 voters in the 88th District, which tilts Republican, were mistakenly given ballots to vote in the 28th.
Ellis sided with attorneys for local election officials and the Republican Party of Virginia, who argued that the mistakes were scattershot rather than systemic and affected too small a percentage of voters to warrant a new election.
"The errors were, in my view, no more than garden-variety irregularities," he said, caused by
"innocent human or mechanical error."
The hearing was on a request for a preliminary injunction, and Ellis suggested that if he was given more evidence of "broad-gauged unfairness" a new special election could still be called.
"But it's going to take much, much more than I've seen before today," he said.
The first day of the legislative session determines political control of the chamber and committees, and the entire session lasts only until mid-March.
To issue an injunction now, the defendants argued in a brief filed Monday afternoon, would "disenfranchise roughly 80,000 residents of HD-28 by denying them any representation in the House of Delegates during a key time period for the House to conduct the people's business."
Republicans hold a 51 to 49 majority in the House of Delegates and are poised to maintain control of the chamber as they have for the past 18 years. Republicans have a narrow majority in the state Senate, while Democrats control the three statewide offices of governor, lieutenant governor and attorney general.
Matt Moran, an aide to Virginia House Republican leadership, called the appeal "a last-ditch effort" by Democrats.
Another Democrat, Shelly Simonds, is considering whether to seek a recount in her race against Republican David Yancey, which would prevent him from being seated Wednesday. State election officials broke a tie in that race by drawing Yancey's name from a bowl.
If both Yancey and Thomas are unable to assume their seats, the balance of power in the House will be split 49 to 49 on the opening day, when members vote to elect a speaker, decide on rules and determine committee chairs.