Updated July 1, 10:16 a.m., with statement from Lynchburg registrar and electoral board below.
Peter Alexander, who lost the Republican nomination for the Ward IV council seat in Lynchburg to Chris Faraldi by just 33 votes, has filed a lawsuit to invalidate the results.
In the suit, Alexander alleges that 125 absentee ballots were received by the Lynchburg registrar’s office, but that records don’t show they were counted. It cites records from the Virginia Department of Elections, which are attached to the suit and detail the status of every ballot cast. The votes in this batch had a status of “marked,” meaning that they had been received in a timely manner, but that status was never updated to confirm whether those ballots were processed and counted.
David Levy, who heads Lynchburg’s electoral board, declined to comment on the case on Sunday. He referred questions to the registrar, Daniel Pense, who said he’ll issue a statement Monday.
Update: On Monday morning, the registrar’s office issued a statement saying “we remain confident that every lawful vote was counted in the June 18, 2024 primary election held by each party. We respect and welcome the review process and we stand ready to assist the Lynchburg Circuit Court in its adjudication.”
Alexander also did not respond to a request for comment, but his attorney, William Hurd of Eckert Seamans Cherin & Mellott in Richmond, said there’s a “disturbing irregularity” in the ballot records.
“That could be an error in recordkeeping. It could be a failure to actually process the ballots,” Hurd said. “But looking at the records themselves, the ballots, what the records say … the ballots were not processed.”
Despite the close election, the two candidates are separated by a 1.6% margin, which is outside the range that Virginia code allows for a recount. A lawsuit like this is the alternative avenue the law provides for candidates to contest election results. Hurd said that this method of challenging an election is rare but not unheard of.
“Virginia, on the whole, has a very good election system, but that does not mean that problems do not occasionally arise as we see here,” he said.
Although the suit’s allegations focus on the registrar’s office, Virginia law outlines election contests as between two candidates, which is why Faraldi is named as the defendant. Faraldi must file a response with the court by July 8.
“This is an unserious challenge over a paperwork mistake that seeks to disenfranchise dozens of voters and lawfully cast ballots,” Faraldi said in a statement to Cardinal News.
Faraldi is set to face Democrat April Watson in the November general election.
The case was filed late Friday afternoon in Lynchburg Circuit Court. Virginia law says that the case should be overseen by the circuit’s chief judge — Judge J. Frederick Watson — and two judges from other circuit courts. Should they find in Alexander’s favor, the election, and Faraldi’s win, would be void.
In that event, the judges could order that a new nominee be selected. Virginia code specifies that if a nomination has been “set aside for any reason,” the party can choose its own nominee by the method of its choosing. While the Lynchburg Republican City Committee is unable as an entity to formally endorse a candidate, committee chair Veronica Bratton had previously urged voters to support Alexander in the election.
Marty Misjuns, a Republican at-large city council member who has publicly supported Alexander’s campaign, provided an affidavit for the lawsuit in which he detailed the normal ballot-tracking process and how he believed it to be different in this race.
He said that while helping Alexander’s campaign, he had observed that no mail-in ballots that had been received by the Saturday prior to the election had been designated as pre-processed on the June 16 daily absentee list update from the Virginia Department of Elections, which would mean they hadn’t been fed into the tabulator machine and added to the count.
In his affidavit, which is attached to the suit, Misjuns says he asked the registrar about this and “it became clear” that there should’ve been a status change when ballots were removed and prepared for processing. Pense didn’t give him a clear answer but said he’d investigate the issue, Misjuns said.
Misjuns said in the affidavit that he “cannot express confidence” that every ballot was counted in the primary.
“The race has a very slim margin of 33 votes, and accountability is missing on the status of as many as 125 ballots in the race,” Misjuns said in the statement. “A detailed audit of the election with a full manual recount may be the only way to ensure no voter has been disenfranchised, and that all properly cast ballots have been counted.”
Virginia law provides for recounts if there’s a difference of less than 1% between the two candidates’ vote totals. It also mandates that if there is a recount, optical scan ballots must be run through vote-counting machines.
