Virginia Democrats formally requested a court-ordered special election for the 28th District House of Delegates seat after revelations that more than 100 voters in the Fredericksburg region cast ballots in the wrong House race.
Attorneys for the House Democratic Caucus filed court papers late Wednesday afternoon asking a federal judge to require a special election between Democrat Joshua Cole and Republican Del.-elect Bob Thomas, who won by just 82 votes on Nov. 7. They also requested federal court orders preventing Thomas from being seated in January and requiring the State Board of Elections to withdraw its certification of the results.
In addition, Cole recently filed a request for a recount in the race to succeed retiring House Speaker Bill Howell, R–Stafford County. The outcome of the recount and lawsuit could determine which party controls Richmond’s lower chamber.
The 28th District includes parts of Fredericksburg and Stafford. Neither Cole nor Thomas immediately returned calls for comment Wednesday.
House Democrats David Toscano and Charniele Herring released a statement Wednesday night saying a special election is the only remedy for voters who got the wrong ballots.
“Having a new election where mistakes are corrected will allow voters to trust the system and be assured that their Delegate was duly elected,” they stated. “Democrats remain committed to ensuring the accuracy of our elections.”
But Parker Slaybaugh, a spokesman for Republican House Speaker-designee Kirk Cox, said in an email that “we are disappointed that Democrats continue to pursue unnecessary litigation in federal court.” He added that there is “a clear state process that should be followed,” and “we will continue to follow that process in good faith.”
Under state law, Democrats could contest the election to the General Assembly, which Republicans narrowly control.
House Democrats called for the special election in an amended complaint in U.S. District Court in Alexandria on behalf of three 28th District voters from Fredericksburg who erroneously received ballots listing House candidates in the neighboring 88th District.
Two of those voters had been assigned to the incorrect district in poll books, the suit claims. The third had been placed in the correct district, but got the wrong ballot because of an apparent error by a poll worker.
U.S. District Judge T.S. Ellis denied the lawsuit’s original request for an injunction prohibiting the State Board of Elections from certifying the 28th District result. He set a deadline of 5 p.m. Dec. 6 for an amended complaint.
The suit’s defendants include the State Board of Elections, Stafford Registrar Greg Riddlemoser and Fredericksburg Registrar Marc Hoffman.
It says Fredericksburg elections officials received at least one complaint by 11 a.m. on Election Day from a voter who got the wrong House ballot. But those officials provided “no remedy to the voter who complained . . . or to any other voter,” the suit states.
The State Board of Elections certified Thomas’ win Nov. 27 after a weeklong delay.
Virginia Elections Commissioner Edgardo Cortés released a memo last week saying at least 147 residents in Fredericksburg and Stafford cast ballots in the wrong House race.
At least 86 voters in the 28th District erroneously got ballots for the 2nd District—which includes parts of Stafford—or the 88th District, Cortés said. And at least 61 voters in the 88th District incorrectly cast ballots in the 28th District. Democrats have not called for a special election for the 88th District seat, which Republican incumbent Mark Cole won by more than 4,000 votes.