State election officials sued by the McCain campaign say Virginia law requires them to ignore any ballots received after Election Day, even though many military voters may not have received absentee ballots in time to be delivered back to registrars by Nov. 4.
“The Defendants must object to the plaintiffs’ attempt to re-write Virginia law as it applies to counting absentee ballots,” the state officials said in a motion to dismiss the lawsuit.
Federal law must take precedence, counters the McCain campaign. “We take the position that federal law trumps the [state] deadline and these people must be given a fair chance to vote,” said William H. Hurd, a Richmond lawyer representing the Republican campaign.
The lawyer for the state election officials said that there is no federal law that requires 45-day advance mailing of the military ballots or counting late ballots. Robert A. Dybing said that the 45-day benchmark is a mere suggestion from a federal official, not a statute or regulation. “State officials are not obligated to ignore the state law because the federal law makes a suggestion to the contrary,” Dybing said.
Even though the lawsuit cannot now change the election outcome, Hurd said that the McCain campaign will persist in its effort to get the ballots counted.
“By continuing this action, it is decidedly not McCain’s intent to challenge President-elect Obama’s victory. Instead, it is McCain’s intent to vindicate the right of military and other overseas voters to have their votes counted and included in the official vote totals. Whether those voters supported Senator McCain or President-elect Obama, their ballots ought not to be thrown in the dust bin on the theory that they are no longer needed,” wrote McCain’s counsel in a brief filed Friday.
A hearing is set for later this month before U.S. District Judge Richard L. Williams in Richmond.
By Peter Vieth