RICHMOND, Va. (CN) – Over three weeks after Virginians went to the polls, Democrats are challenging the results in two districts where the vote margin was 106 votes or less.
This development, plus a possible third recount or additional legal filings, could shift power of the 100 seat state house to Democrats for the first time in 20 years.
“In races with slim margins such as these, recounts ensure that every vote is counted and every voice is heard,” said state House Democratic Leader David Toscano and Caucus Chair Charniele Herring in a statement announcing the recount request.
The Commonwealth’s already newsworthy election has seen its share of drama. At least one federal lawsuit has been filed over state House District 28 where Democrat Joshua Cole blames a post office error for his loss, after a number of absentee ballots arrived the day after the election. Cole, who lost by just 82 votes, is asking the judge to certify the votes, though the Department of Elections claims absentee votes must be received by 5 p.m. on election day in order to be valid.
But District 28 has other problems as well. After certifying the district’s votes on Monday, election officials admitted at least 147 votes were counted in the wrong district or given the wrong ballots. A former registrar who has since passed away is said to have been the cause of the mistake.
“This may not be the first time people got the wrong ballot, it’s just the first time somebody noticed,” said Professor Stephen Farnsworth, the director of University of Mary Washington’s Center for Leadership and Media Studies.
He said this year’s election is unique because the margins involved in these key state races are so slim — 10 votes in District 94, 106 votes in District 40, and 82 votes in District 28 — and because the outcome has the potential to tip the scales of power in the Commonwealth.
Farnsworth thinks legal challenges could further bog down January’s 2018 session and possibly force legislators to start without 100 confirmed members or control of the House solidified.
“It seems likely that this will find its end in the courts,” he said noting the 28th district complaint could soon be among others filed by candidates as recounts proceed in the coming weeks. “If a court rules that the winner of the election can’t be seated until the litigation is concluded … you’d be looking at a 50-49 House of Delegates.”
That has understandably made the stakes high for both parties.
If recounts fail to satisfy either party’s candidate, additional legal options could be pursued. One is to go to court, as Cole has done. Among the possible outcomes in that case is that the presiding judge could order a special election be held.
The state constitution also provides another route to resolving lingering electoral controversies.
The General Assembly may select the winner of a contested election by following a procedure similar to passing a bill. The losing candidate files a petition with the Committee on Privileges and Election which then hears the case and reports its findings to the House at large. The House then holds a vote and the majority selects the winning candidate.
Democratic Party of Virginia Communications Manager Katie Baker had warned about recounts and says her party is quite fired up about the 147 mixed up votes, less than half the losing margin for Cole.
“It’s the equivalent of putting those ballots in a box and burning them,” she said.
Still, Virginia Republicans are confident the vote certification has given them the majority they need.
“Dragging this process out has only prolonged the important work that remains to be done by both sides in preparation for the 2018 General Assembly Session,” said Republican House Speaker-designee Kirk Cox in a statement sent out following yesterday’s election certification. “We stand ready to govern.”
State Democrats have 10 days to file for a recount for Monday’s certification of District 28. They are still weighing their options.
Representatives of the Republican Party Virginia did not respond to requests for comment for this article.