The suit filed by two Waynesboro Republicans who are trying to block the certification of votes cast in the city in the Nov. 5 election is as flimsy as you had imagined.
“I would say I’m worried because I know that the possibility exists to program a machine to operate in a certain way,” said Scott Mares, the vice chair of the Waynesboro Electoral Board, one of the two Republicans on that three-member board who filed suit in Waynesboro Circuit Court earlier this month to assert the right to a hand count of votes cast in next week’s election.
Mares described himself in a Circuit Court hearing on Tuesday as an IT professional with 30 years of experience, perhaps thinking that would add gravitas to his observations about machines, bad.
He actually came across more like Mona Lisa Vito, the character in the 1992 comedy “My Cousin Vinny” portrayed by Marisa Tomei, in an Academy Award-winning performance, trying to pass off growing up working in her family’s garage as making her an automotive expert.
The scripted Mona Lisa Vito was far more compelling than the subdued Mares, who now runs a bed and breakfast in town, and couldn’t come up with an example of an election in his three years of service on the electoral board in which he had questioned the veracity of the vote count.
ICYMI
His suit-mate, Curt Lilly, the chair of the electoral board, testified that he has had concerns about voting machines dating back 20 years, which would translate to the 2004 election won by George W. Bush.
There was nothing remotely controversial about the 2004 election, the only one in which the Republican candidate was able to win a majority in the popular vote in this century.
Lilly, like Mares, has served on the Waynesboro Electoral Board for the past three years, and like Mares, Lilly couldn’t cite an instance in that time in which he has raised question with the vote count in the city.
In fact, under cross-examination, Lilly conceded that he has voted to certify “nine or 10 elections” without objection in his time on the electoral board, and that there is no record of him raising objections to the counting process in the electoral board’s monthly meetings.
His bone of contention: “I can’t be certain of the machine counts because I can’t see them count the votes,” said Lilly, who expressed a preference for a hand count, “because I can see the votes being tallied, and I can see the counts rising as they’re being counted.”
Lilly and Mares both expressed in their suit a preference for a hand count, but the Virginia General Assembly has gone to great lengths to enact a set of laws spelling out a detailed process for the conduct of elections in the Commonwealth in which the counting is done by machines and then certified based on that machine count.
Edgardo Cortes, the commissioner of the Virginia Department of Elections, from 2014 to 2018, and the former registrar in Fairfax County, testified at length about the process, spelling out the duties of local election officers on Election Day, how votes are counted at the precinct level after the polls close, are then reported to the city or county registrar office, reviewed in a local canvass of votes, certified by the local electoral board, and eventually delivered to the State Board of Elections, which oversees the process for certifying federal, statewide and interjurisdictional elections.
Cortes said the notion of a local electoral board not certifying election results, which would happen in Waynesboro if Lilly and Mares follow through with their plan to withhold certification, “isn’t something that we’ve had to consider in the past.”
“I’m not sure there’s been a situation where we haven’t seen at least two members of an electoral board to sign, certify and send local election results to the State Board,” Cortes told the court.
Thomas Ranieri, a Front Royal-based attorney representing Lilly and Mares in the case, made the non sequitur claim that the State Board of Elections has the ability under state code to certify the election results absent the certification from the local board.
“I don’t see a reason why the results would be withdrawn from the final count without the signatures of the officers. The State Board is the ultimate arbiter of whether or not the election is certified,” said Ranieri, for whom the crux of the case is, his clients, “who have taken an oath to uphold the Constitution, are being forced to put their names to something they believe to be a lie.”
Ranieri was just beginning to make the argument that his clients would suffer “irreparable harm” if they were required to certify the election results against their conscience, but was interrupted by Judge Paul A. Dryer.
“Don’t they have the option to just resign?” Dryer asked, rhetorically, raising the idea that Lilly and Mares could simply resign their board seats in protest of the process set out by law and seek other means to address their personal issue with machine counts by petitioning the General Assembly to change state laws governing the vote-count process, or filing suit to challenge the process as private citizens.
Dryer seemed to be tipping his hand there in terms of a ruling that is expected to come from his bench in the coming days.
The deadline that we’re facing here isn’t Nov. 5, Election Day, because localities have until Nov. 15 to submit their certified final vote counts to the State Board of Elections.
The hearing in Circuit Court on Tuesday in what, ultimately, feels like an open-and-shut case – state law spells out the process for how votes are counted, and the two Republicans who filed their pre-emptive suit couldn’t raise a single specific objection to the process, relying entirely on the possibility that machines can be manipulated, and their personal insistence that hand counts are more accurate – stretched on for more than three hours.
“If each local-level official had the ability to individually make the determination based on their beliefs that this process is somehow flawed, that would create chaos for every voter in Virginia,” said Keith J. Harrison, an attorney with Crowell & Moring, a Washington, D.C.,-based firm working with Advancement Project on behalf of five Waynesboro voters who brought a countersuit against Lilly and Mares.
Full disclosure: I’m one of the five parties to the countersuit.
“We didn’t hear a shred of evidence that there is a shred of evidence that the machines are not accurate. The machines are tested, audited and certified by the State Board of Elections. Individual beliefs are not a substitute for the laws of the Commonwealth. Especially when there are other options available to the defendants,” Harrison said.
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Chris Graham
