The Chesterfield County Republican Committee has alleged in a court complaint that Chesterfield Registrar Constance Hargrove failed to comply with statutorily mandated post-election procedures by excluding a representative of the Republican Party during a meeting Friday that considered the validity of provisional ballots.
Carey Allen, vice chair of Chesterfield’s GOP Committee, was present when the Provisional Ballot Meeting convened, “but was directed to leave during the consideration of provisional ballots in contravention of Va. Code 24.2-653.01,” according to the complaint and motion filed Monday in Chesterfield Circuit Court that seeks the court’s intervention.
“A failure by [Hargrove] to see that Virginia Code ... or the inability of a Republican Party representative to observe the Provisional Ballot Meeting prejudices the ability of the parties to an election contest to prove or disprove ‘objections to the conduct or results of the election ... which ... would have probable impact on the outcome of the election,’ ” the complaint says.
Designated representatives of the Republican Party “have a clear statutory right to observe the Provisional Ballot Meeting without regard to whether a recount or contest may be pending,” the complaint says, quoting a section of the Virginia Code that states, “The electoral board shall permit one authorized representative of each political party ... to remain in the room in which the determination is being made as an observer.”
A provisional ballot is used to collect a vote when there are questions about the voter’s identity or ability to vote at a specific precinct. A provisional ballot is counted when the voter’s information is confirmed.
On Friday, Chesterfield Circuit Judge David Johnson summoned Hargrove to appear before him Tuesday in an order “to show cause, if any, why you should not be found in contempt for failure to comply with the provisions of Virginia Code 24.2-668.”
But at Tuesday’s hearing, Johnson immediately withdrew the order and dismissed the case after determining that he had no authority — at least at this stage — to litigate the matter.
“This court has reviewed statutory and case law to determine its authority to act [of its own accord] ... in the event violations of this code section have been alleged,” the judge said from the bench. “This court finds that it has no constitutional, statutory or implied authority to take any action with regards to any irregularities or conduct of any elected official, unless and until the matter is properly brought before this court pursuant to the statute.”
The complaint and motion for intervention was filed Monday by Chesterfield Republicans, three days after Johnson issued a show cause order for Hargrove.
The judge, in remarks from the bench, said he issued the show cause order after Chesterfield Circuit Court Clerk Wendy S. Hughes “brought to the attention of this court that portions of Virginia Code 24.2-668 may not have been complied with.” Johnson did not elaborate. The circuit court clerk is an elected constitutional officer of Virginia; Hughes won the seat as a Republican.
After the hearing, attorney Martin Conn, who was retained to represent Hargrove, said his client was not provided notice of the Republican Party’s complaint, and “today was the first time we heard” of it.
“We don’t know what the alleged issues are,” Conn said, adding that Hargrove “did not have an opportunity to prepare to respond to the allegations today. What the judge is saying is that he did not constitutionally have the ability to pursue or continue the lawsuit without her being provided with notice.”
Attorney Bryan Horn, who helped draft the GOP complaint and was in court Tuesday, declined to comment after the hearing. It wasn’t immediately clear what steps, if any, county Republicans now intend to take.
In a court brief filed by the GOP’s attorneys, the Chesterfield Republican Committee says it is seeking to protect the rights of their candidates in the 2020 election.
In addition to denying a GOP representative to observe the Chesterfield Electoral Board’s determination of the validity of provisional ballets, the brief alleges that Hargrove’s “failure to comply with her obligations to properly deliver election materials to the [Chesterfield Circuit Court] Clerk prejudice the rights of the Republican Party candidates .”
“ [Delivery] of election materials to the Clerk is a critical election administration rule on which all candidates depend for any post-election proceedings,” the brief says.
The complaint indicates that Republicans may be seeking ways to contest or force a recount of U.S. Rep. Abigail Spanberger’s apparent victory over her Republican challenger, state Delegate Nick Freitas, R-Culpeper.
After falling behind Freitas by more than 50,000 votes on election night, Spanberger roared back early the next morning to close the gap and ultimately take a lead of more than 5,100 votes on the strength of early in-person and mailed absentee votes in Henrico and Chesterfield counties.
As of Tuesday, Spanberger had a lead of 8,208 votes, or 50.82% to Freitas’ 49.01%, according to the Virginia Board of Elections.
Freitas has not conceded the race, pending final certification of votes of the 10 counties in the district.
“Because there appears to be a difference of no more than one percent in the votes for at least one Republican candidate and his opponent in the November 2020 General Election, the Republican candidate appears to have the right (pending the certification of results) to petition for a recount pursuant” to Virginia law, the Chesterfield GOP complaint says.
“A failure by [Hargrove] to comply with the requirements of Va. Code 24.2-668 necessarily deprives a recount court and the parties to a recount of the assurances to which they are entitled, i.e., that they have access to all materials used in the election and the proper security measures were in place so that the recount can be properly conducted,” the complaint says.