RICHMOND (CN) - Voters in Virginia are appealing a federal judge's decision against a new election for a race that might have forced a 50-50 split in Virginia's House of Delegates.
Kenneth Lecky and his co-plaintiffs filed their notice of appeal on Sunday.
They had sued for a new election in Virginia state House District 28 after 147 people received the wrong ballots on election day in November.
When votes were counted in the district on the night of Nov. 7, Republican Bob Thomas had beaten Democrat Joshua Cole by just 73 votes.
The state board of elections blamed the ballot snafu on a clerical error and apologized, but the plaintiffs were not mollified. They argued in federal court in Alexandria, Virginia on Friday that beyond the potential to change the outcome of the race, holding a special election for the district is the only way to ensure that every citizen's vote counts.
But after a hearing Friday afternoon, U.S. District Judge T.S. Ellis III concluded the "garden-variety irregularities" that transpired on election day didn't merit federal intervention.
As a result, he declined to issue the preliminary injunction the plaintiffs sought to prevent Thomas from being seated when the state legislature convenes on Wednesday.
As things stand now, Republicans hold a 51-49 edge in Virginia's House.
“The results of the House District election are unknown and unknowable,” said Marc Elias, who is representing the plaintiffs in their emergency appeal.
“[The Leckys] should have been put in the right voter districts or at least given provisional ballots … this ordinary citizen, doing exactly what we hope that citizens do, was ignored," Elias said.
Monday saw several motions filed in the case, but so far the Fourth Circuit has not acted on them.
“Courts hesitate to weigh in on political questions sometimes and this is one of those times,” said Dr. Stephen Farnsworth, a political science professor at the University of Mary Washington.
Farnsworth also happens to be a resident of District 28. He says that while he received the right ballot on election day, he understands why the Leckys would be angry about getting the wrong one.
Still, as a legal matter, he said "a judge can chose to engage as they see fit, but they run the risk of being overruled if other judges disagree. That’s why I think this makes sense to talk about this in the case of probabilities. This is the kind of case that judges don’t like to rule on.”
That said, Farnsworth put the plaintiffs' chances of getting a special election called at less than 50 percent.
“I think it's really hard for a judge to rule to call for a new election,” he said. “The best guess we have right now is that this was simply administrative mistakes. Had there been some fraudulent effort, the case for a new election would have been much stronger.”Follow @@BradKutner
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