Judge Dismisses Virginia Mail-In Ballot Lawsuit Ahead of Tuesday’s Election

Election workers count ballots in a file photo. Chris McGrath/Getty Images

A Virginia judge dismissed a lawsuit claiming that Fairfax County improperly accepted applications on absentee ballots, responding to a complaint that was filed late last month, coming as Virginia’s gubernatorial election is scheduled for Nov. 2.

The Virginia Institute for Public Policy filed a lawsuit (pdf) arguing that the Fairfax County Office of Elections accepted applications for absentee and mail-in ballots without residents’ final four digits of their Social Security numbers. They argued that such a practice violates state law.

The county’s elections office responded by saying that state law stipulates that such a lawsuit can only be filed by “any aggrieved voter,” a campaign’s party, or a candidate. The Virginia Institute for Public Policy, a conservative-leaning nonprofit organization, is none of the three, they further said.

Judge Michael Devine on Oct. 29 supported the Fairfax elections office and ruled that the plaintiffs didn’t have standing to file the lawsuit.

“The judge dismissed the case on a technical ground that the Virginia Institute of Public Policy lacked standing to bring the case,” J. Christian Adams, president of the Public Interest Legal Foundation, said in a statement after the ruling. His organization was involved in bringing the lawsuit.

Adams said that despite the ruling, the “merits of the case were not reached,” and said it is “unfortunate that an important election will take place with the registrar of the largest county in Virginia breaking the law. It isn’t fair to change the rules in the middle of the game. Fairfax is the only county breaking the law.”

The Fairfax County Office of Elections has not immediately responded to a request for comment.

Virginia’s gubernatorial race is slated for Tuesday and is seen as a bellwether contest that could predict the outcome of the 2022 midterms, or even the 2024 presidency. Polls have shown that Democrat Terry McAuliffe and Republican Glenn Youngkin are locked in a tight race, and both candidates engaged in frenetic rallies to attract more voters over the past weekend.

“I’ve done this job before. I was the most pro-business pro-progressive. I made this state open and welcoming, created a lot of jobs. We do not want to go back,” McAuliffe, who was the state’s governor between 2014 and 2018, told a crowd in Henrico County on Saturday.

Youngkin, meanwhile, told supporters that the GOP would sweep the Virginia House, Senate, and governor’s office on Tuesday.

“This is a moment for us to make a statement that big government control is going to lose and liberty and freedom in Virginia are going to win,” he told supporters in Abingdon.