Virginia Lawyers Weekly

The U.S. Justice Department replaced John McCain’s presidential campaign last week as the plaintiff in a lawsuit demanding that Virginia election officials count late absentee ballots from military personnel serving outside the state.

U.S. District Judge Richard L. Williams ruled that the Republican ticket lacked standing to sue and approved the Justice Department’s motion to intervene. He scheduled a hearing on the merits of the case for Dec. 8.

The McCain campaign sued the State Board of Elections on Nov. 3, the day before the election, claiming absentee ballots were not mailed on time to military members outside Virginia. The lawsuit claims a 1986 federal law requires that those absentee ballots be mailed at least 45 days before the election.

However, the judge ruled that only the U.S. attorney general is authorized to seek enforcement of the law. William Hurd, an attorney for the McCain campaign, told reporters after the hearing he was disappointed that his clients were removed as plaintiffs but pleased they were able to get the matter into court.

Williams also denied the government’s motion to immediately order the votes counted – a ruling that Robert Dybing, an attorney for the state board, said supports his view that Virginia conducted a fair election. That ruling clears the way for the board to certify the election results today as scheduled.

The judge still could order the votes counted after the Dec. 8 hearing, but even if he does, it won’t change the outcome of the election in Virginia. Hurd said the state has received 4,750 late absentee ballots, and an undetermined number of those would be from military personnel covered by the 1986 law. Democrat Barack Obama defeated McCain by nearly 233,000 votes in Virginia, according to unofficial returns.

The state board claims the lawsuit is moot because the late ballots would not affect the result, but Hurd said that is beside the point.

“A candidate has a right not just to win or lose but to see his or her votes counted,” Hurd told Williams.

The late ballots alone also would not alter the outcome of the extremely close 5th District congressional race. Hurd said only about 200 ballots were received late in that district, where unofficial returns show Democrat Tom Perriello with 745 votes more than Republican Rep. Virgil Goode.

Justice Department attorney Alberto Ruisanchez said it’s important to ensure that ballots are properly counted not just for the 2008 election, but for future elections as well.

Dybing argued that the law allows troops who don’t get their absentee ballot in time to cast their vote on a federal absentee write-in ballot. Ruisanchez said that remedy would be burdensome and impracticable, particularly for troops serving in combat zones.

Under state law, the deadline for all absentee ballots to be received was 7 p.m. Election Day. Just hours before that deadline, Williams ordered officials to safeguard all late-arriving absentee ballots until the lawsuit is decided. That order remains in effect.

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