So, Joshua Cole(D) has lost his recount against Bob Thomas (R) in the 28th District, which encompasses Fredericksburg, to the tune of 73 votes after a final decision by a three judge Virginia state panel. What are Cole’s options?
Presently, there is a lawsuit pending before Judge T.S. Ellis III in the Eastern District of Virginia urging the judge to order a special election based upon a small number of voters having been given ballots not corresponding to their precinct.
Most probably, Cole must file a contest in the General Assembly, and he must do so within three days of the final ruling by the three judge panel which is Tuesday December 26, 2017 accounting for the Christmas holiday. If he fails to do so it could be argued before Judge Ellis at the next hearing, scheduled for January 5, 2018, that there is an adequate state law remedy which Cole is not pursuing and therefore Federal intervention is not required.
Judge Ellis has previously stated he is willing to let the state law remedies play out. The Virginia Lawyer’s Weekly has reported that: “After Wednesday’s emergency hearing, conducted by telephone conference, Judge T.S. Ellis III said it’s too early for federal intervention and said the state process, including possible recounts and contesting the results of the election to the General Assembly, should run its course.” Federal courts ought to interfere as little as possible in state matters of this sort,” he said.
Be that as it may, it appears Judge Ellis remains open to Federal intervention. He rejected arguments made by Republican lawyers that the federal courts had no role whatsoever. He said it’s conceivable that a full investigation of the errors could eventually necessitate a need to intervene and order a new election.” This isn’t the end of the issue,” he said. “This case goes on despite denial of the temporary restraining order.”
In any event, this presents an unusual case where the present members of the General Assembly would presumably hear the contest. But there is a short time frame until the new General Assembly members are sworn in January. The General Assembly convenes on January 10th.
