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Judge rejects request for new vote in Virginia House race in 28th District

Joshua Cole (ABC7)

ALEXANDRIA, Va. (AP) -- A federal judge on Friday rejected a request for a new election that might have forced a 50-50 split in Virginia's House of Delegates, calling ballot mistakes cited by Democrats a "garden-variety" problem that doesn't merit federal intervention.

Democrats had hoped a new election in the 28th District would provide an opportunity for an even split in the chamber, which is now on track to be controlled by a 51-49 GOP majority.

Democrats cited state election officials who said 147 voters received the wrong ballot before Republican Bob Thomas beat Democrat Joshua Cole by only 73 votes.

It is the second defeat in as many days for Democrats. On Thursday, election officials broke a tie vote in another House district by drawing names from a bowl, and picking the Republican.

U.S. District Judge T.S. Ellis III said Friday that legal precedent bars federal courts from intervening in state elections on the basis of "garden-variety irregularities." He ruled that the misassignment of a few hundred voters in a district where more than 20,000 people cast ballots does not rise to a level requiring federal intervention.

Ellis also said the errors appear to be innocent, with "no claim of a great claim of a conspiracy to dilute these votes or do anything nefarious."

Friday's ruling at U.S. District Court in Alexandria does not end the matter entirely. Ellis did not dismiss the case outright. Instead, he rejected a request for a preliminary injunction that would have ordered a new election.

He could still theoretically order a special election after hearing additional evidence, though he said Friday that "it's going to take much more than I've seen" so far.

The plaintiffs -- voters backed by a law firm aligned with Democrats -- also could appeal Ellis' ruling. Their lawyer, Bruce Spiva, said he would review appeal options with his clients.

It is the second time Ellis has rejected a request to intervene in the race. Last month he rejected a request to issue a temporary restraining order that would have barred state elections officials from certifying Thomas as the winner. In both rulings, Ellis said he was leery of interjecting federal courts into a state elections process.

Coming into the November elections, Republicans held a massive 66-34 majority in the House. But a Democratic wave, fueled by antipathy to President Donald Trump, pushed Democrat Ralph Northam to a larger-than-expected victory in the gubernatorial race and flipped 15 House seats to from Republicans to Democrats.

So, far, though, Democrats have not been successful in flipping a 16th seat that would create a 50-50 split in the chamber and force a power-sharing agreement. On Thursday, Democrat Shelly Simonds lost a drawing in a tied race in a Newport news District, giving Republican David Yancey a victory. Simonds still has the option of seeking a second recount in that race, though.

The 28th District is based primarily in Stafford County but also includes a few precincts in the city of Fredericksburg. The Fredericksburg precincts tilted heavily toward Cole.

The district is currently represented by House Speaker Bill Howell, a Republican who opted not to seek re-election.

A recount in the 28th District shrunk Thomas' lead from 82 votes to 73. The bigger issue, though, was the discovery that numerous voters were assigned to the wrong district and thus given the wrong ballots.

Edgardo Cortes, head of the state Department of Elections, said in an affidavit that 86 voters who showed up on Election Day should have been given ballots for the Cole-Thomas race but instead received ballots for other House districts. Another 61 voters who should have been assigned to other districts cast ballots in the Cole-Thomas race, and there is no way to segregate those ballots from all the others that were cast.

Local elections officials who opposed ordering a special election said they have acted in good faith and that a new election is not warranted. "An election has got to have a beginning and an end," said their attorney, Michael Matheson.

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