Preemptive Electoral Challenges in Waynesboro, Virginia: A Clear Illustration of Widespread Administrative Tension

November 5, 2024

By: Sophie Tully

Election certification litigation is rampant in Virginia just days before many voters go to the polls on Election Day.

Waynesboro election board members Curtis Lilly and Scott Mares filed a lawsuit in Waynesboro Circuit Court on October 4th claiming they would refuse to certify the November election without hand-counted ballots due to concerns with voting machines. Voters responded with their own lawsuit on October 22nd against those election officials for their pledge not to verify the election. 

Lilly and Mares argued in their suit that the Virginia Constitution, which prohibits the vote counting in secret, renders the voting machines set to be used in Waynesboro unconstitutional. Article II, Section 3, “Method of Voting,” states that “the ballot box or voting machine shall be kept in public view and shall not be opened, nor the ballots canvassed nor the votes counted, in secret.” Lilly and Mares claim that this provision encompasses their concerns about voting machine secrecy. They claim Board members are unable to access ballot numbers from voting machines and are thus unable to affirm the accuracy of vote totals. These claims come on the coattails of similar voting machine claims in 2020 and 2021 which underpinned the “Stop the Steal” movement. Lilly v. Beals shows that the 2024 general election may offer deja vu in the form of election certification challenges that mirror those of the 2020 election, despite widespread data-backed claims that Virginia has secure voting machines.

Voters responded to Lilly v. Beals with their own suit against Lilly and Mares. The voters suing the Waynesboro electoral board alleged in their Complaint sought emergency relief in the form of a declaratory judgment for violation of the Virginia Constitution, injunctive relief prohibiting violation of the Virginia Constitution, and a writ of mandamus to perform their duties with respect to the November election. The suit also included details supporting the claim that Lilly and Mares planned to fail to certify the November election results, a sentiment mirrored in news coverage of both suits.

Both suits relied on provisions of the Virginia Constitution, which shows the relevance and governance of state constitutions in election administration. The openness or manipulability of Virginia’s Constitutional language, namely the secrecy provision, suggests that municipal application of provisions aimed to cover a broad swath of administrative procedures through general principled language can engender dispute. The distinctive between general principles of elections as articulated in state constitutions and how those procedures actually shake out in practice creates a foothold for officials like Lilly and Mares to argue that their positions are constitutionally backed and that any laws they violate are unconstitutional. This reality creates difficulty for those aiming to stop these challenges, especially so close to an election. 

This throughline of perceived electoral issues and interests in ensuring votes are counted proves precarious when channeled into litigation, especially within a month of an election. Litigation lamenting certification concerns prior to election day could have a widespread impact on whether voters in Waynesboro cast votes, threatening voter self-efficacy and trust in elections. While cross-litigation, as manifested by the voters in Waynesboro suing for a writ of mandamus, argues to voters that election board members like Lilly and Mares suggested fraud are themselves acting unconstitutionally, rampant litigation shows voters that their votes and their role in electing their candidate of choice is in flux.

While Waynesboro’s challenges come before election day, they foreshadow a contentious road ahead for election certification. Resolution of these Waynesboro cases, or lack thereof, may set the tone for post-election litigation and outcomes. Just as in Waynesboro, it may be that widespread trust in elections comes from the bottom up, starting with municipalities and whether they abide by election law. Waynesboro, a city of 22,000 people, shows that interest in election litigation reverberates in every corner of the country.