Feds step in to push overseas ballots suit

By Cheryl Chumley

Published: November 21, 2008

A lawsuit initiated Nov. 3 by John McCain's presidential campaign to compel eight Virginia jurisdictions to include overseas ballots in the final state election will go forth with the Justice Department as lead plaintiff.

The motion for the McCain-Palin 2008 Inc. complaint filed in federal court in Richmond accused the eight counties and cities of violating established deadlines for mailing the absentee ballots to overseas voters. The ballots were then received late for counting.

The counties of Arlington, Chesterfield, Fauquier and Loudoun, as well as the cities of Chesapeake, Richmond, Suffolk and Virginia Beach were named in the complaint. The defendants are not the jurisdictions. Rather the com-plaint seeks redress from the chairman, vice-chairman and secretary of the Virginia State Board of Elec-tions.

In a brief hearing on Election Day, Nov. 4, a U.S. District Court judge ordered any ballots received between Nov. 4 and Nov. 14 to be secured, and also set a date to hear court

arguments that would decide the fate of the uncounted votes.

At issue are nearly 5,000 votes, said William Hurd, one of the lead attorneys for the plaintiffs. In a telephone call Thursday, Hurd confirmed that the Justice Department had now assumed the plaintiff role in the case, which will be heard Dec. 10.

"We were very pleased to have started the fight … and are pleased the attorney general will now take up that banner," he said.

And just because the election has passed—and the plaintiff no longer has legal standing to pursue the case—the issue of uncounted votes is not moot, he said.

"The judge addressed that point," Hurd said, "and he decided that even though this election is over … we do not want to wait until the next election for this to come up again to be settled."

Even if the case were found in favor of the plaintiffs, the vote tallies would not change in Virginia, Hurd added.

"There are not enough ballots at issue to change the outcome," he said, explaining that the underlying issue is that "we think service [members] deserve to have their votes counted."

Staff writer Cheryl Chumley can be reached at 703-670-1907.