The biggest story of Election Night 2017 was, without a doubt, Ralph Northam’s surprisingly decisive victory in the Virginia gubernatorial race. But an equally important story played out in the race for the House of Delegates, the lower house of Virginia’s legislature. In a feat previously thought unthinkable, the Democrats overcame one of the most brutal gerrymanders in the nation and came within striking distance of regaining control of the chamber for the first time in 17 years.
They still have a shot of taking back the majority, as the races for three seats will likely be subject to recounts. However, the Virginia House Democrats believe that they may have had victory snatched away from them in one of those races. Why? More than 700 voters may have been effectively denied their right to vote. They believe that absentee ballots that only arrived late due to a Post Office snafu should be counted, and also suspect that several voters may have been given ballots for the wrong district.
The Republicans went into the election holding a supermajority of 66 seats, largely due to a map intended to pack as many Democrats as possible into ultra-safe seats. The man who helped craft that map, state house speaker Bill Howell, announced earlier this year that he would not run for a 16th two-year term. He represented the 28th district, comprising most of eastern Stafford County and the western half of the city of Fredericksburg in Washington’s outer suburbs. Howell had held it without serious difficulty, but it is trending purple at the national level. In 2016, Donald Trump nosed out Hillary Clinton by just 420 votes.
The race to succeed Howell nearly got swept up in the massive Democratic wave that swept through Northern Virginia. According to preliminary results from the Virginia State Board of Elections, Republican Bob Thomas leads Democrat Joshua Cole by 82 votes–well within the one percent margin required for an automatic recount.
However, the Virginia state house Democrats has discovered evidence of some major irregularities in how the votes were counted in that district. They held a conference call on Wednesday afternoon with state house Democratic leader David Toscano and election law attorney Marc Elias.
Listen to Elias discuss these concerns here, via Blue Virginia, the biggest political blog in the Commonwealth.
The first issue concerns 55 absentee ballots that weren’t picked up by the Stafford County registrar until the morning after the election. On Tuesday afternoon, the Stafford County electoral board voted to throw those ballots out.
However, according to The Washington Post, when registrar Greg Riddlemoser saw these ballots, he was concerned enough to email state election commissioner Edgardo Cortes to say that something was very amiss. Riddlemoser claimed that “no possible way” that he couldn’t have received those ballots before the polls closed at 7 p. m. on Election Day–unless the Post Office mishandled the ballots.
Under Virginia election law, any absentee ballot received by the registrar before the polls close must be counted. Elias contends that when absentee voters “do everything right” in filling out and sending their ballots, “errors by the government” are not a legitimate reason to keep their votes from being counted. Within hours of the Stafford County electoral board voting to toss out the ballots, the state house Democrats filed a federal lawsuit contending that the First and 14th Amendments require that these absentee ballots be counted.
Elias then made an even more staggering disclosure–the state house Democrats are looking into the possibility that hundreds of voters in Fredericksburg received ballots for the wrong district. Fredericksburg is split between two districts–the 28th, covering the western portion, and the 88th, covering the eastern portion. The problem arose on the afternoon of Election Day, when Fredericksburg officials called Richmond to report that at least one voter living on the line between the two districts questioned whether he had been given the right ballot.
Elias said that when he and his team looked at the preliminary election results, they discovered that three precincts in Fredericksburg were split between the two districts. However, the 2011 redistricting law only allowed one split precinct in the city. According to Elias, the other two precincts are supposed to be entirely within the 28th district. By his count, at many as 668 voters who should have received ballots for the 28th district may have instead received ballots for the 88th district–dwarfing the current gap between Cole and Thomas.
Elias stressed that this is merely something “we are investigating” at this point, and believes that there may be “a simple explanation,” such as an error on the Website. However, Elias said that it is possible that if those precincts were improperly split, as many as 668 people may have been denied the right to vote in their correct district. The Democratic challenger in the 88th District won that district’s shares of those two disputed precincts going away.
If the latter is the case, Elias said,”it is not a tolerable situation.” He has asked the state board of elections to exclude votes from the two disputed precincts from the results for the 88th district and decline to certify a winner in the 28th district. The state house Democrats and the Cole campaign are waiting for the board’s response before deciding how to proceed. To my non-lawyer’s mind, if voters in those precincts got ballots for the wrong district, the only credible solution would be a new election.
Now why does this matter? Well, the margin in a Newport News-based district is down to a paper-thin 10 votes. If the Democrats pick up enough votes in the recount to overturn that lead, the state house will be tied at 50 seats apiece, forcing a power-sharing arrangement. If the Democrats pick up just one other seat that is due for a recount, Toscano becomes state house speaker.
To be sure, Northam’s win was a staggering rebuke to the White House. But the prospect that a state house race may potentially turn on people being denied their right to vote proves that we can’t rest easy. The fact that such a massive snafu could even possibly happen is yet more proof our electoral system is broken and needs to be fixed–now.
(featured image courtesy Edward Kimmel, available under a Creative Commons BY-SA license)
