UPDATE: Federal appeals court to consider Democrat election challenge

UPDATE: It now appears likely that a Richmond-based federal appeals court will determine whether Republicans will control the House of Delegates — or whether the two parties will share power — when the General Assembly convenes on Wednesday. Democrats have already filed an emergency appeal of a judge’s ruling last Friday denying their request for a new election in a very close race, one where 147 voters were given wrong ballots. The appeals court has instructed defendants to file their briefs by four pm Monday. Attorney Marc Elias represents the Democrats:

 01-08 Elias Bite1-WEB

Republicans and local election officials say the errors were unfortunate but not constitutionally significant. If the Republican candidate certified as the winner is seated in Richmond Wednesday, the GOP will have the majority, determining the House Speaker and key committee assignment. If judges put a hold on it, there is a likely even split.

PREVIOUS: (AP) — A federal judge has rejected to a motion to order a new election in a Federicksburg-area House of Delegates, calling ballot mistakes cited by Democrats a “garden-variety” problem that doesn’t merit federal intervention. Democrats had hoped a new election in the 28th District would provide an opportunity for an even split in the chamber, which is now on track to be controlled by a 51-49 GOP majority. Democrats cited state election officials who said 147 voters received the wrong ballot before Republican Bob Thomas beat Democrat Joshua Cole by only 73 votes.

It is the second defeat in as many days for Democrats. On Thursday, election officials broke a tie vote in another House district by drawing names from a bowl, and picking the Republican. U.S. District Judge T.S. Ellis III said Friday that legal precedent bars federal courts from intervening in state elections on the basis of “garden-variety irregularities.” He ruled that the misassignment of a few hundred voters in a district where more than 20,000 people cast ballots does not rise to a level requiring federal intervention.

Ellis also said the errors appear to be innocent, with “no claim of a great claim of a conspiracy to dilute these votes or do anything nefarious.”

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