by Dick Hall-Sizemore

Two Republican members of the Waynesboro Electoral Board, a majority, have asked a court to declare the use of voting machines a violation of the Virginia Constitution and of state law.

The constitutional complaint is based on the provision in the constitution that votes shall not be counted in secret. The electoral board members assert that, because they and members of the public do not have access to the programming of the computer that enables it to determine how many votes to assign to each candidate, the counting is being done in secret. Virginia law requires electoral boards to declare which candidate got the most votes and to issue a certificate of election to that person. The plaintiffs say that they cannot do that in good conscience because they do not know whether the computer is programmed to count the votes accurately and to do so would be a violation of their oath of office. The only remedy would be a hand count. In case the court cannot hear and reach a decision before election day, the plaintiffs have asked for a temporary injunction. (These arguments are the same made earlier by the Hanover Republican party, which did not pursue them in court.)

Aside from the suggestion of a complex conspiracy to program the voting machines to produce false results, there are two curious aspects to this situation. The first is that Donald Trump, who consistently questions the validity of elections and accuses the Democrats of plotting to steal the upcoming election from him, handily was the top vote-getter in Waynesboro in the 2016 and 2020 Presidential elections.

So what would these Republican board members have to gain by not certifying Trump as the winner in Waynesboro? There has been some suggestion that not certifying the Waynesboro results would delay the State Board of Elections from certifying (officially declaring) the statewide winner, who is expected to be Kamala Harris. 

That might well be the case, but state law does not seem to allow such a delay. The law requires local electoral boards to submit their certified results within 10 days. If the State Board has not received the certification from a local board, it “shall dispatch a law-enforcement officer to obtain a copy of the abstract from the official having charge thereof. That official shall immediately, on demand of the officer, make out and deliver to him the copy required, and the officer shall deliver the abstract to the State Board without delay.” That would seem to settle it. But these electoral board officers may stand their ground and say they cannot and will not certify the election results because they cannot, in good conscience, say who actually won  the election. The Code of Virginia does provide for such a situation.

However,  the Code does not require that the State Board of Elections have all the voting abstracts (list of the candidates and how many votes each got) before certifying the statewide winner. The law says, “The Board shall examine the certified abstracts on file in its office and make statements of the whole number of votes given at any such election” for each candidate. (Sec. 24.2-679, emphasis added.) The Board is required to use the abstracts it has received from localities in the ten days since the election to declare the official winner. This could be interpreted, “Waynesboro, you did not get your votes in on time, therefore, they will not be used to declare the winner.” This would be analogous to the provision that absentee ballots received after the deadline are not counted. There are several such deadlines in election law.

The other curious aspect to this affair is the timing. These electoral board members have been in office since 2022. They have overseen general elections in 2022 and 2023, as well as primary elections in those years and this year. The voting machines were used in all of those years. Why are they suddenly having these pangs of conscience just now, a month before the presidential general election? An interview one of the board members gave The Washington Post provides a hint to the question of timing. “He said that concerns about election integrity were what led him to volunteer for the post but that he did not have a way to challenge the system until Ranieri proposed suing with a novel legal argument: that machine counting amounts to counting votes in secret.” 

“Ranieri” is Thomas Ranieri, an attorney who is representing the electoral board officers and filed the suit on their behalf. According to The Post, Ranieri is a “member of the Warren County Republican Committee who volunteered as an elections observer in Pennsylvania in 2020” when Trump was contesting the results of that election.