A Democratic-aligned law firm faces an uphill battle in its latest effort to block Stafford County Republican Del.-elect Bob Thomas from being sworn in Wednesday, legal and political experts said Monday.
U.S. District Judge T.S. Ellis declined Friday to order a new election in the error-tainted 28th District House of Delegates race between Thomas and Democrat Joshua Cole. But the law firm representing several district voters appealed and is now seeking an injunction barring Thomas from being seated until the case plays out.
Thomas, a Stafford supervisor who retiring Republican House Speaker Bill Howell endorsed to succeed him on the Fredericksburg-area seat, won by 73 votes amid reports that 147 voters had been assigned to the wrong House district. Perkins Coie of Washington is representing several affected Fredericksburg voters in the federal suit requesting a new election.
University of Mary Washington political science professor Stephen Farnsworth said the odds that the 4th U.S. Circuit Court of Appeals would reverse the judge’s decision “seem less than 50–50.”
“The biggest challenge the Democrats are facing right now … is the calendar,” he said. “The party is running out of time, and that’s going to make it harder … to block the seating of Thomas.”
In a conference call with reporters Monday, Marc Elias of Perkins Coie noted that the appeals court set a deadline of 4 p.m. Monday for the defendants—including the State Board of Elections and registrars in Fredericksburg and Stafford—to respond to the appeal.
“Obviously, we take it as good news the court is paying attention … and has ordered a response so that it will be resolved in a timely fashion,” Elias said. He said he did not expect the appeals court to require oral arguments given the “timetable at stake.”
Attorneys with Washington-based Baker & Hostetler, which represents Thomas, submitted court papers opposing the emergency motion, writing that it would “disenfranchise roughly 80,000 residents of HD–28 by denying them any representation in the House of Delegates during a key time period for the House to conduct the people’s business.”
Richmond attorney Michael Matheson also opposed the injunction on behalf of the registrars, saying the plaintiffs appeared to be “concerned with party control of a legislative body, not voter disenfranchisement.”
Rebecca Green, co-director of The College of William & Mary’s Election Law Program, said it will be hard to persuade an appellate court to undo the lower court’s ruling.
Judges may be reluctant to put themselves in a politically charged situation, she said. On the flipside, doing nothing would also have political ramifications by benefiting the GOP delegate-elect.
“It’s sort of a catch-22 in that way,” Green said.
The court could be swayed by what she called the “Democratic-values argument” that every vote should count, she said.
“It’s hard to get injunctions,” Green said. “What makes it easier for the plaintiffs, I suppose, is the idea they’re representing voters who were disenfranchised in this election. They’re not arguing to not count votes, they’re arguing to count them.”
Republicans have a 51–49 edge in Richmond’s lower chamber, though that majority could vanish if Thomas and Del. David Yancey, a Republican in the 94th District, are not seated. Yancey won a tie-breaking random drawing last week, but Democrat Shelly Simonds did not concede the Newport News-area race and could request a recount.
The party in control will appoint the House speaker, make committee assignments and set procedural rules. “These are very powerful procedural matters that dramatically impact the ability of a minority party to participate in debate and shape legislation in committee,” Farnsworth said.
At least 86 voters in the 28th District erroneously got ballots for the 2nd District—which includes parts of Stafford—or the 88th District, Elections Commissioner Edgardo Cortés wrote in a report after the Nov. 7 election. And at least 61 voters in the neighboring 88th District incorrectly cast ballots in the 28th District.
Republicans characterized the issues as accidental “garden-variety irregularities” that do not warrant federal intervention in a state election, and Judge Ellis agreed.
But Elias, the Democratic attorney, called them “fundamental errors” and accused officials of trying to sweep them under the rug. He said Fredericksburg elections officials took down a precinct map on Election Day after one of his clients, D.D. Lecky, erroneously got an 88th District ballot. The map showed that she lived in the 28th District, but the voter database listed her as an 88th District voter.
Lecky said in the press call that she was denied her right to vote for Joshua Cole, who had supported Medicaid expansion and other issues important to her. “It became … more than just an error in a poll book,” she said.