Less than a week before Election Day, Waynesboro voters are waiting on a judge to rule in a legal battle over the certification of the city's election results. WMRA's Randi B. Hagi reports.
In early October, two of Waynesboro's three electoral board members filed suit against the commissioner of the Virginia Department of Elections and the chairman of the Board of Elections. The lawsuit argues that the way Virginia uses ballot-counting machines is unconstitutional. In affidavits, Curtis Lilly II and Scott Mares asserted they will not certify "the 2024 election until such time as the legal regime permits for hand-counting ballots, and certification would not result in a violation of the Virginia Constitution."
Five Waynesboro voters filed a countersuit, asking the court to order Lilly and Mares to perform their duties and certify the city's election results. Judge Paul Dryer presided over an injunction hearing in the countersuit on Tuesday.
The crux of the electoral board members' argument comes from a section of the Virginia Constitution which reads, "the ballot box or voting machine shall be kept in public view and shall not be opened, nor the ballots canvassed nor the votes counted, in secret."
Their attorney, Thomas Ranieri, of Front Royal, argued that because the local board of elections cannot watch the internal machinery counting the votes, inspect the machine's programming, or confirm the results' accuracy with a hand-count, the canvass is secret – therefore the method of election administration is unconstitutional, and the board cannot certify that the results are accurate. He told WMRA in a phone interview –
THOMAS RANIERI: We care very much that everyone who votes has their vote accurately recorded, and has their voice actually matter, rather than leaving it up to the very general sort of reassurance that everything is perfectly fine. The reason we're concerned is, when we literally look down into the granular election stuff, it's not. There's nothing really there to make sure that someone's vote is being counted Republican or Democrat. And so I want to feel like I know who actually won an election. I feel like most people would want to know that.
The voters' attorneys, from the D.C. firm Crowell & Moring and the Advancement Project, argued in court that their clients "have a constitutional right to suffrage … that will be infringed" if the board members refuse to certify.
Jennifer Lewis is one of the voter plaintiffs and a former Democratic candidate for the House of Representatives.
JENNIFER LEWIS: I definitely don't think that there's any validity to their argument. This is purely political. Purely a way to disenfranchise voters, and to make – just muddy up the system.
The voters' counsel called Edgardo Cortés as a witness. He served as Virginia's first commissioner of elections, from 2014-2018, and gave about two hours of testimony on the details of how the counting machines are vetted by federally certified laboratories, tested for accuracy before each election, and what electoral board members are asked to do. That includes ensuring that the number of voters checked into each precinct matches the number of votes cast there, and transporting sealed boxes of ballots to the clerk of the court after polling closes.
Cortés said this challenge is unprecedented in Virginia, and there would be "cascading effects from the failure of a local electoral board" to certify – such as theoretically delaying Virginia from certifying the statewide election results.
Ranieri told me that is not their goal.
RANIERI: It would delay the state until they figure out how to certify it without them, you know. Which they will. … The 'need' they have for certification sounds like more than anything else a bureaucratic need.
I asked Ranieri if he believes mistakes or fraud have occurred in ballot-counting machines in Virginia.
RANIERI: My perspective is that, again, that's not really relevant to my argument. … I don't know if it's accurate or not. I have no way of checking.
The lawsuit is supported by a new organization Ranieri formed called Restore: Virginia, LLC, which aims to get laws off the books that violate the Virginia Constitution. He said the idea for this challenge came from a man named Darryl Bow. Ranieri met him and a woman named Jocelyn White Hinegardner at the GOP state convention, and started discussing the concept this summer. Those two connected Ranieri to the Waynesboro board members. I reached out to Hinegardner, who serves as the secretary for Virginia's Sixth District Republican Committee. She directed my questions to Ranieri.
The legal watchdog group CREW has identified 25 similar cases in seven states. In the cases where local officials initially delayed or denied certification, they did eventually certify the results, sometimes under pressure from a state agency or court order.
Ranieri expects the court will order his clients to certify the election, and for them to comply. Then, next week's election could proceed as planned, and they could appeal the court's decision afterward.
RANIERI: But ultimately, what we're actually asking for, is just to have an administration of an election that follows the Constitution as well as those laws in the Virginia statutes that don't contradict the Virginia Constitution.
Lewis said local voters are worried about how the case will affect this election.
LEWIS: I go out door-knocking every day. … And when I'm talking to voters, they are concerned about this. When this story is posted on social media, the comments – people are like, "is my vote going to count? What's happening?"
At the end of Tuesday's hearing, Judge Dryer said he would issue a ruling on the voters' request for an injunction as soon as practicable.
