Why the suit to void a council primary in Lynchburg matters across Virginia

The late writer Hunter S. Thompson coined a popular phrase: “When the going gets weird, the weird turn pro.”

He was writing about a trip to Las Vegas, but he may as well have been writing about one to Lynchburg.

The city, whose council has been a source of drama and political infighting over the past two years, has now offered up a new episode involving something I’ve never seen before in Virginia: a legal challenge that seeks to void an election.

That part is actually pretty straightforward. It’s other questions swirling around that legal challenge that are strange, or perhaps even downright weird. Perhaps we’ll get some answers at a special meeting of the Lynchburg City Council on Wednesday — or perhaps not.

Let’s review what’s at issue (and bear in mind, some of the questions here involve more than just Lynchburg).

In 2022, Republicans swept the three at-large seats available on the city council. That gave Republicans a 5-2 majority, either their first in several decades or perhaps the first ever, depending on how you do the counting. In times past, council members often were elected as independents even though they may have been well-known to be Republicans or Democrats.

You’d think the fighting that ensued on the city council would have been between the two parties, but you’d be wrong. Instead, it’s been between two Republican factions, with Marty Misjuns and Jeff Helgeson in the hardline faction, Chris Faraldi and Stephanie Reed in a more temperate faction, and Larry Taylor floating between them.

The vitriol here is at a level I’ve never seen in local politics before. The city council voted 5-2 to censure Misjuns last year for his behavior. The executive committee of Lynchburg’s Republican Party voted to censure Faraldi, prompting a special mass meeting of Lynchburg Republicans to overturn that censure (the party chair insists that meeting wasn’t proper, although a state party official says it was). In unrelated drama, the Lynchburg Republican Party also resisted complying with a new state law that makes it virtually impossible to nominate candidates by any way other than a primary; ultimately it took the attorney general to force acquiescence to a primary for city council nominations, of which only one was in dispute — the seat held by Faraldi.

All that is necessary background to understand what’s unfolded in that recent Republican primary for the Ward IV council seat. Misjuns and Helgeson recruited Peter Alexander to challenge Faraldi. They came close but not close enough. Faraldi won by 33 votes. While it doesn’t sound like much, that margin of 1.6% falls just outside the 1.0% margin the state allows for a recount. (The official results: Faraldi 1,042, Alexander 1,009.)

Last Friday, Alexander filed suit to challenge those results — the official phrase is a “contest” of the election. I’ve followed Virginia politics for a long time, and I can’t remember when an election result has been contested. Recounts? Sure. We have recounts for something almost every election cycle. But a legal challenge to void an election result? I can’t remember that. I’ve checked with others with longer memories than mine. Some say they’ve heard of contests, but can’t point me to an actual case beyond a possible case in a town election where the loser sued, alleging the winner lived outside the town limits, which is quite different from saying the electoral board got the results wrong. Some say they’ve never heard of a case like this at all. If someone out there in reader land knows of a suit to throw out an election result in Virginia history, I’d love to hear about it. Suffice it to say, this case is certainly unusual.

The specific allegation here is that there were 125 absentee ballots that were received, but the records in the registrar’s office don’t show that they were actually counted. The electoral board has since put out a statement saying it’s confident all lawful votes were counted, inferring that the failure to mark these ballots as counted is simply a paperwork error. That seems plausible. After all, the registrar’s office has already admitted it forgot to check the dropbox by the deadline on Election Day and only later found seven ballots there.

Still, the allegation that not all votes may have been counted is a serious one and deserves looking into. Attorney General Jason Miyares made a big deal about setting up an “election integrity unit.” He’s been criticized for setting up a unit that didn’t really have anything to look into — the criticism being that his announcement was all a public relations ploy. Now we have an actual allegation; this would seem a good use of that unit’s time. I asked the AG’s office if it was involved here and was told “no comment,” which is what I would have expected for a legal matter. But let’s hope the answer here is really “yes.”

Now, here’s where things get weird.

Over the weekend, the Lynchburg city attorney sent an email to council members about the case. We don’t know what it said, because that’s protected by attorney-client privilege. What we do know is that the email has prompted Misjuns and Helgeson to call for a special meeting of the council on Wednesday to discuss the matter. The paperwork the pair filed for the meeting refers to “an uncommon and unexpected condition presented in a proposal by City Attorney Matthew Freedman.” Among the agenda items that Misjuns and Helgeson propose is to waive attorney-client privilege on that email so it can be made public “to promote transparency and provide context to the public for the business conducted during this special called meeting.”

We might be able to guess at the contents of that email, though, by some of the other agenda items that Misjuns and Helgeson propose. Among them is one that would direct the city attorney to “promote transparency and accountability in our election process by fully complying with requests for discovery in a timely manner” and would also prohibit the city “from taking an adversarial or obstructive position on valid requests for disclosure during contested challenges of political party nominations that are carried out by the City of Lynchburg’s Electoral Board and Registrar’s Office.”

The specific resolution would bar the city attorney “from acting on behalf of the Electoral Board or the General Registrar without a recorded majority vote from the Electoral Board to ensure separation of power in local government” and would send a message to the court handling the election contest suit “with the intent to negate any improper, unauthorized, unethical or potentially illegal interference by the City Attorney for the City of Lynchburg into any political party nomination contest that was not authorized with a properly recorded vote by a majority of City Council.”

What the heck is this all about?

The part about not allowing the city attorney to act on behalf of the electoral board is especially curious, since there’s already a memorandum of understanding between the city and the electoral board that says the state represents the board, not the city. So why does the city council need to pass a resolution to affirm what already exists? Has something happened? Is something about to happen? We don’t know. I’ll make a guess, though: The city helps fund the electoral board (the state provides some funding, too). Does that mean the city has a fiduciary interest in making sure elections are properly run — and election results upheld? If so, where does that leave the city in this particular legal action?

That brings us to some other curious resolutions that Misjuns and Helgeson are proposing. (For readers outside Lynchburg, please bear with me. We’re eventually getting to some questions that apply across Virginia.)

One resolution would bar public funds from being used “to provide legal representation, consultation, or support to City Council members for the defense of personal interests,” including “political party nomination contests.”

That seems pretty basic, right? It does, or would seem to, except for this. In their message calling for a special meeting, Misjuns and Helgeson say: “City council must act expeditiously to prevent government intrusion into the nomination contest for a political party, or interference into litigation between private parties.”

Pay special attention to that last phrase “litigation between private parties.”

That gets to the crux of the matter. Alexander’s lawsuit challenging the election results isn’t against the electoral board, it’s against Faraldi. Why? Alexander’s attorney, Bill Hurd of Richmond, says that’s how the law requires it. Indeed, the code section dealing with election contests makes no mention of electoral boards, only the “contestant” (the loser who files suit) and the “contestee” (the winner whose victory is being challenged). For what it’s worth, this is also how recount petitions are officially styled — loser vs. winner, not loser v. electoral board.

That raises the question: why? Why must a winner be the one to defend what the electoral board has certified? Shouldn’t the defendant be the electoral board? “I suspect the Virginia code deems the winning candidate the defendant because the winner is the presumptive officeholder and has the most incentive to defend the election result, rendering the winning candidate an indispensable party,” says Hank Chambers, a law professor at the University of Richmond.

I wonder if this case, however it is resolved, will prompt the General Assembly to revisit this section of the law? Misjuns and Helgeson make the case that this is “litigation between private parties,” but this seems a lot different than two neighbors arguing in court over where the fence should be. This is ultimately a public issue of the highest order in a democracy: Did the electoral board get the results right?

I’m not sure what Misjuns and Helgeson are up to with these resolutions. In some ways, they appear innocuous, but given that a) they’re determined foes of Faraldi and supporters of Alexander, and b) Misjuns signed an affidavit attached to Alexander’s suit, they may have some goal here to make it more difficult for Faraldi to defend this suit. After all, at some point, I’d expect Faraldi would turn to the electoral board and say, “Hey, these are your results, you explain them. I’m not the one who counted the votes.” Would these resolutions have the effect of making it difficult for the electoral board to do whatever it’s required to do in this case? I have no idea — but the novelty of this case, and the enmity between the two factions, makes me, well, let’s just say curious.

I’m also curious what the court will do here (as I’m sure Alexander and Faraldi are too!). If the Lynchburg registrar were to testify that all lawful votes were counted, that this was simply a matter of forgetting to check the box on some form, is that sufficient to resolve the matter? If not, I’d think the court would want to look more deeply into things before it took the extreme option of declaring an election void, as Alexander requests. How would such an investigation proceed?

Note that declaring the election void doesn’t set in motion another election. Instead, under Virginia law, the duty of making a substitute nomination would fall to the local Republican Party — whose apparatus, in this case, is firmly under the control of the Misjuns/Helgeson faction. Voiding the primary results effectively hands Alexander the Republican nomination. Is that something the General Assembly would want to revisit? As it stands now, a losing candidate has the incentive to challenge election results in court if he or she thinks voiding the outcome would give him or her a better chance of winning the nomination. Does that encourage frivolous challenges? I’m not saying this is a frivolous challenge, but we live in times where it’s become more common to question election outcomes we don’t like. Does this rarely used provision in Virginia law open the door to more election litigation than we’ve seen in the past? If primary results are voided, would it make more sense for the law to require a new election than trust some party faction?

There are multiple ways to look at this. Here are the two extremes you can choose from.

Option A: Alexander is trying to take advantage of an innocent paperwork mistake to overturn the will of the people and allow his faction to nominate him for council. Meanwhile, his allies on the council are doing whatever they can to make it hard for the electoral board to defend the results.

Option B: There really are 125 votes that didn’t get counted.

Option A certainly fits into the context of the Republican civil war in Lynchburg. However, we can’t say that Option B is impossible, especially given the previously reported problem with the dropbox in Lynchburg. You don’t have to take sides to want to know if those 125 votes really did get counted.

Now, let’s look at the math.

This city council race overlapped with the 5th District Republican congressional primary between Bob Good and John McGuire. In that race, Lynchburg had 373 mail ballots. They broke 195 for McGuire and 178 for Good.

Alexander backed Good, and Faraldi supported McGuire. So if there are 125 Republican uncounted mail ballots in Ward IV, and if those ballots are representative of the overall pool of mail ballots in the city, then Faraldi probably won those narrowly.

We also don’t know for certain that these were Republican ballots. A Democratic primary — for the 5th District congressional nomination — was going on at the same time. In Lynchburg, far more Democrats voted by mail than Republicans did — 930 Democratic mail ballots vs. 373 for Republicans. Now, the odds are those came from Democratic precincts, and not those in Ward IV, which tends strongly Republican. But there are some Democrats in Ward IV (632 of them voted in-person on Election Day), so it’s likely that some of these 125 mail ballots in question were for the Democratic side.

Even if they were all Republican ballots, and even if they all had a vote in the council race, Alexander would have to win 64% of them to make up his deficit. Given how the other votes broke, that seems highly unlikely.

None of that math, though, negates the imperative of making sure all the votes were counted, no matter who they were for. As I sought out expert law experts to comment on this case, all were fascinated by how unusual this Lynchburg case is — and perhaps a little concerned, as well. One of those I was directed to was Stephen Cobb, a former deputy attorney general of Virginia who is now in private practice in Washington, D.C. He put it like this: “As the City of Lynchburg goes through the ever-rare process of a contested election, it will be a vitally important indicator for how prepared local jurisdictions are to handle controversy in the midst of a federal election cycle. In a Presidential election year, where the stakes couldn’t be higher, it is essential for all local election officials and boards to embrace best practices to efficiently and effectively administer our elections — and any post-election reviews that may follow.”

Ultimately, that’s why this case matters far beyond Lynchburg: How quickly can the courts deal with this? With a contentious presidential election looming, where one candidate already has a history of questioning election results, this Lynchburg council primary serves as a test case for what may or may not lie ahead.

In this week’s West of the Capital:

I write a free weekly political newsletter that goes out every Friday afternoon —West of the Capital. This week I’ll be diving deeper into the John McGuire-Bob Good Republican primary in the 5th District, looking at all the ways it has made history.

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