Voters fill out their ballots at Nuckols Farm Elementary School in Henrico County, Va., November 7, 2023. (Parker Michels-Boyce for the Virginia Mercury)
Two GOP officials from Waynesboro have filed a lawsuit challenging Virginia’s voting system ahead of the Nov. 5 presidential election while threatening to not certify the results.
In their complaint, Curtis Lilly, the chairman of the Waynesboro Electoral Board, and Scott Mares, the board’s vice chair, are raising concerns about the validity of future results while echoing unmerited claims that the 2020 election, in which Democrat Joe Biden defeated then-President Donald Trump with more than 7 million votes, was stolen.
Filed on Oct. 4 at the Waynesboro Circuit Court against Virginia Department of Elections Commissioner Susan Beals and State Board of Elections Chairman John O’Bannon, the suit alleges that the voting machines used in the state are unverifiable and could potentially be manipulated.
The plaintiffs further claim the machines may be connected to the internet, allowing for external tampering, though this is illegal under state law and no evidence has been provided to support this allegation.
When reached by phone Tuesday, Lilly declined to be interviewed for this story. Mares did not respond to several calls seeking comment.
Lilly and Mares argue that under the current legal regime, local electoral board members are unable to personally review and verify that the voting machine program being used to count the ballots “is keeping and recording a true and accurate count,” and that the device’s record tape accurately represents the ballots cast.
“Consequently, the plaintiffs believe that the voting machine is counting the votes in secret, because neither the program counting the votes recorded on the ballots nor the ballots themselves can be examined,” the complaint says.
Lilly further stated in an affidavit attached to the complaint that he “cannot ensure that the machines do not connect to the internet, allowing for vote counting algorithm manipulation, nor can I ensure with any certainty that the electronic ballot scanners are presenting results which are consistent with the contents of the ballot box.”
Henry Chambers, a professor for constitutional law at the University of Richmond School of Law, said in a phone interview Wednesday that the lawsuit appears to be based on long debunked conspiracy theories circulating after the 2020 presidential election that claimed vote counting machines had been programmed to get votes wrong and to flip votes.
“That’s not really a serious thing, but some people have bought into it and it sounds like these folks have bought into it, too,” Chambers said.
“Their notion is that vote counting that is done by a machine is done in secret, and therefore you have to hand-count the votes, presumably in public, in order to have a real tally of the actual vote count,” Chamber continued. “That would suggest that voting that is not done by hand and in public qualifies as counting in secret, which in theory would violate the state Constitution.”
In Virginia, voters cast paper ballots, which are then counted by optical scanning machines — as required by state law — to expedite the process and avoid human error. Ballot scanning machines are certified to meet both state and federal standards and are maintained under a controlled chain of custody.
Before every election, the scanners are tested using a predetermined sample of votes to ensure they are tallied accurately before any actual votes are cast, and it is against the law to connect a ballot scanning machine to the Internet at any point.
Beals, who was appointed as Virginia’s top elections official in March 2022, did not respond to text messages seeking comment Tuesday, and a spokeswoman for the Department of the Elections said in an email that the department does not comment on pending litigation.
But in an interview in July, Beals said that hacking the scanning machines was impossible.
“Period. They cannot be,” she said, adding that after the testing of the devices ahead of the election and on Election Day, officials also conduct risk-eliminating audits, which she called the back-end check.
“So we have three different checks throughout the system just to make sure that the machines are reporting accurately.”
Chambers, the UR professor, called the plaintiffs’ argument that the machine counting of ballots happened in secrecy “an odd thing,” because the machine itself is doing the counting in a public space, supervised by election officials.
“The problem with counting being done in public is that one can’t necessarily explicitly see what’s going on. But the fact is, we have lots of things that count things and we just agree that it’s being counted correctly, like ATM machines,” Chambers said.
“No one would say that the ATM machine is spitting out money in secret, but it’s spitting out money in response to a request. Here, a voting machine is counting votes in response to a ballot being fed through a machine.”
By asking for ballots to be hand-counted instead of being tabulated by machines, the plaintiffs could really be asking for a slow-down of the count, Chambers added, which “can introduce additional problems with a valid count — and that is the whole point of feeding the ballots through during the day and having a continuous count is so that you can have results in a reasonable and fair time. Hand counting is used only when necessary when you’re talking about things like absentee ballots or ballots that can’t be read by the machine.”
It also remains unclear why the GOP election officials who filed the suit would threaten to not certify the presidential election, in a county that leans Republican and where Trump won with 51-46% in 2020.
Rich Anderson, the chairman of the Republican Party of Virginia, underscored that the lawsuit was a lone effort by a small group of GOP officials from one locality.
“As far as I know it’s only happening in this one jurisdiction out of 133, but it’s all going to get settled in the courts anyway,” Anderson said in a phone interview. “What they’re asking is the court to render its opinion, which it will do, and the opinion will likely be on the side of Virginia law, which says that ballots are counted through the optical scanners, not by hand.”
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The counting of ballots by optical scanning machines has been proven as safe and reliable, Anderson said.
“We vote by paper, the votes are rendered and are fed through the machines. And then if there’s a recount, they go through the whole process again, as we recently saw in the 5th Congressional District,” Anderson said. “And it comes out pretty much dead accurate.”
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