Democrats file 3rd lawsuit in state race

Caucus in Virginia says voters were disenfranchised; first 2 complaints dismissed

RICHMOND, Va. -- Democrats hoping to win control of Virginia's House of Delegates filed a federal lawsuit Tuesday seeking to block the state Board of Elections from certifying a tight race that has been clouded by ballot mix-ups.

The Virginia House Democratic Caucus filed the suit in U.S. District Court in Alexandria -- the third complaint Democrats or their allies have filed over that key legislative race since the Nov. 7 election. All the lawsuits claim that voters had been disenfranchised for various reasons; the first two were dismissed.

Late Tuesday, the elections board decided to postpone a Wednesday meeting to certify results in the 28th District and in the adjacent 88th District, said Edgardo Cortes, the state commissioner of elections.

The board met for certification Monday but held off amid concerns that dozens of Fredericksburg voters might have received the wrong ballot. State elections officials said local records erroneously assigned 83 voters in the 28th District to the 88th District, although it was not clear how many of those voters cast ballots on election day.

House Republicans said they would sue the board if it did not certify the results by Wednesday.

While both the 28th and 88th District races appear to have been affected, concern has focused on the 28th District race because it is tight. Republican Bob Thomas holds an 82-vote lead over Democrat Joshua Cole for the 28th District seat, which is being vacated by retiring Speaker William Howell, R-Stafford.

The Thomas-Cole contest is one of three close races that could determine which party controls the General Assembly's lower chamber after a wave of Democratic House wins.

The newest lawsuit, filed against the board and Cortes, asserts that voters were cheated out of their right to cast a ballot in the proper race.

"These voters were disenfranchised from voting for the delegate who is to represent them," said Marc Elias, attorney for House Democrats and Cole.

"We have requested that the court issue a temporary restraining order to prevent the State Board of Elections from certifying the results in HD-28 until all voters who were disenfranchised have been given a reasonable opportunity to cast a ballot in the appropriate House District."

The election is likely headed for a recount, although that cannot begin until after the results have been certified.

Legislators could wind up deciding the 28th District winner if the losing candidate chooses to contest the election in the House. Or a judge could order a new election.

A Section on 11/23/2017

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