On Monday the Virginia Board of Elections certified the House of Delegates race in the 28th District in which Republican Bob Thomas presently holds an 82 vote lead over Democrat Joshua Cole. Cole will request a recount, which he will probably lose. The question is what happens after that.
In one of the more mysterious developments in recent memory, some voters were assigned to the wrong districts in this race. The Board of Elections reported today that “at least” 25 voters incorrectly cast ballots in the 2nd House District, “at least” 61 incorrectly cast ballots in the 28th House District, and “at least” 61 incorrectly cast ballots in the 88th House District. The “at least” means, I think, that the Board still doesn’t know the extent of the problem.
The Democrats filed suit in the Eastern District of Virginia protesting the election results. At a hearing last Wednesday, the presiding Judge T.S. Ellis III denied the Democrats’ request for a temporary restraining order, and declined at the present time to intervene in this matter, but stated in open court that Federal intervention in the form of ordering a new election is a possibility.
In addition, Joshua Cole could, and probably will, file a contest in the House of Delegates three days after the recount is over. Under Virginia law, the House of Delegates could award the election to either Cole or Thomas or order a new election. It’s also possible Bob Thomas might be prevented from voting on his own election results in the event of a contest in the House of Delegates, as it is likely the current composition of the House (not the incoming membership) will hear this contest prior to seating the newly elected delegates in January.
If for some reason there is a tie vote in the House of Delegates between awarding either Thomas or Cole the 28th District seat (highly unlikely but who knows in these times) then the 28th District race would be decided by lot. Va Code 24.2-803(H).
Depending on the outcome of the recount in District 94, where Republican Delegate Yancey is currently holding onto a slim lead, the outcome in a contest of the House District 28 election could determine who holds a majority in the 2018 House of Delegates.
The Democrats’ federal complaint is embedded below.