Hearing held in contested Lynchburg GOP primary ahead of August trial

A three-judge panel on Monday ordered that the two parties in a lawsuit contesting the results of a recent Lynchburg primary election can have access to a list that the registrar’s office used to keep track of which voters returned absentee ballots in that election.

The request was one of several motions addressed during a hearing ahead of the case’s Aug. 9 trial date. After vice mayor and city council member Chris Faraldi won the June 18 Republican primary in the city’s Ward IV against Peter Alexander with 1,042 votes to Alexander’s 1,009, Alexander sued to have the primary declared invalid, arguing that the results do not take into account 125 absentee ballots.

One of the claims in Alexander’s lawsuit is that a state-managed electronic system that tracks voter information did not update the status of the 125 ballots to show that they had been counted. Alexander’s attorney, Bill Hurd, said in court Monday that a recent deposition of Lynchburg Registrar Daniel Pense revealed that the registrar’s office instead used a hard-copy list to mark off absentee ballots as they were counted, and he said that seeing that list “may help resolve a major issue in this contest.”

The motion to have the registrar provide the list was jointly filed by Hurd and Zach Werrell, who represents Faraldi and said he agreed to it to help resolve the case more quickly. Faraldi and Werrell have said that the 125 absentee ballots in question were in fact included in the election results, and in a public statement earlier this month, Faraldi called Alexander’s challenge a “baseless, frivolous lawsuit.”

The case is being heard in Lynchburg Circuit Court by Lynchburg Circuit Judge J. Frederick Watson, Norfolk Circuit Judge Everett Martin and Judge H. Lee Harrell of the 27th Circuit, which covers nine Southwest Virginia circuit courts.

The judges said earlier this month that they want to have the matter resolved by mid-August because ballots for the November general election will be printed in September. Four of Lynchburg’s seven city council seats are up for grabs; Democrat April Watson also seeks the Ward IV seat that Faraldi currently occupies.

Virginia state law frames the election challenge as a lawsuit between Alexander and Faraldi. Although Pense, the registrar, is not named in the suit, he retained Lynchburg attorney Philip Baker, who told the three judges on Monday that the record is “pretty clear” that the 125 votes were counted.

“We disagree with any suggestion that the registrar’s office did not provide a proper count,” and the evidence supports that assertion, Baker said.

The judges also granted a second part of the joint motion that sought to give Alexander and Faraldi copies of what’s known as the daily absentee list for the June 18 Democratic primary. The list is produced by the Virginia Department of Elections as a paid service for qualifying clients; it provides names of people who will receive, or have received, absentee ballots for an election.

Because the parties already have access to the Republican list, having the corresponding Democratic list could help resolve the matter, according to the joint motion. Hurd said in court Monday that the Republican list accounts for some ballots placed in a dropbox, and his client has concerns about the rest.

Asked by Watson if there is any evidence that the ballots in the dropbox were not properly accounted for, Hurd said that “the candid answer is no” but referenced a situation where seven votes were found in the dropbox , uncollected by the registrar’s office for two days after the primary. Hurd said that raised larger questions about whether the rest had been correctly processed.

Baker said that only those seven votes were ever in question, and Pense already addressed them during his deposition in the case. Going beyond those seven, Baker said, is irrelevant to the case and “potentially undermines the integrity of the electoral process.”

Acting on another motion from Alexander, the judges granted a request to have Steven Troxel, the Republican vice chair of the Lynchburg Electoral Board, testify in a deposition on July 31. The motion said that Troxel “may or may not have information pertinent to this election contest.”

While the judges granted Alexander’s and Faraldi’s joint motion for some records, they denied Alexander’s request for complete lists of the primary’s Republican and Democratic voters. Hurd said the purpose of seeking those lists was to ensure that nobody who voted was actually ineligible for reasons such as being a felon.

“If the number of invalid voters exceeds the margin, then we do not have a valid election,” Hurd said, referring to Faraldi’s 33-vote margin of victory over Alexander.

Hurd said he also wanted to ensure that no one had voted in both primaries. In Virginia, a voter does not need to register with a political party and can choose whether to participate in a Democratic or Republican primary but cannot vote in both during a single election.

Hurd acknowledged that those requests did not pertain to issues raised in Alexander’s initial complaint. The judges questioned how Alexander and Hurd would investigate whether voters were felons, lived outside Ward IV or were otherwise not eligible to vote in the primary. They also asked Hurd if there is any evidence of ineligible voters participating or of people voting in both primaries, to which Hurd replied that there is not.

Werrell objected to Alexander’s request for the voter lists.

“I don’t think it’s going to show anything,” he said.

Finally, the judges denied Alexander’s motion to allow witness testimony to be filed via affidavit, with an exception that they would permit it if both parties agreed. Werrell said he opposed the motion, saying he would want to cross-examine any of Alexander’s witnesses. Watson, the Lynchburg judge, asked why witnesses couldn’t simply appear in person, while Martin, the Norfolk judge, said he is “skeptical” of affidavits generally.

Outside the courtroom, Alexander’s challenge to Faraldi’s primary victory has sparked a conflict among members of the Lynchburg City Council and Lynchburg’s city attorney.

City council members Jeff Helgeson and Marty Misjuns have alleged that City Attorney Matt Freedman originally intended to help defend Faraldi in the suit, which they say would be an improper use of public resources in a private lawsuit. Helgeson and Misjuns supported Alexander in the primary, and Misjuns filed an affidavit that accompanied Alexander’s lawsuit.

Freedman and Faraldi have denied that Freedman or any public funds have supported Faraldi’s legal representation.

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