Motion To Dismiss Fairfax City Council Recount To Be Filed This Week

Correction (Nov. 29, 7:55 a.m.): An earlier version gave the incorrect number of candidates that should've been included in the petition, according to Billy M Bates' lawyer. The story has been updated with the correct number.

FAIRFAX CITY, VA — One of the lawyers involved in Monday's preliminary hearing concerning a possible recount of the 2022 Fairfax City Council race told the court he planned to file a motion to have the entire proceeding dismissed.

John W. Farrell of McCandlish Lillard, who was representing city council candidate Billy M. Bates, told Fairfax Circuit Court Judge Penney Azcarate that the petition filed by Anahita N. "Ana" Renner requesting a recount of the Nov. 8 election should've included all six winning candidates.

Since voters were asked to choose from nine candidates to fill the council's six seats, all winning votes in the race will need to be included in the recount to determine the ultimate winners and losers.

Renner's petition filed in Fairfax Circuit Court on Nov. 21 by Christopher Marston of 2652 Group LLC only mentions Bates and none of the other five winning candidates.

The Code of Virginia requires that all winning candidates involved in a recount must be notified within 10 days of the certification of an election. The Fairfax City Electoral Board certified the results of the city council race on Nov. 14. Since the court was closed on Nov. 24 for the Thanksgiving holiday, Monday was the deadline for Renner's attorney to file an amendment to the original petition adding the other candidates.

Farrell told Patch he will file his motion to dismiss the case by the end of business on Wednesday. Marston will have until the end of business on Thursday to file his response.

Related: Court Hearing Set For Recount Of Ballots In Fairfax City Council Race

Azcarate will oversee the three-judge court responsible for the recount. She will be joined by Circuit Court Judges John W. Brown and C.N. Jenkins Jr., who were appointed by Chief Justice Samuel Bernard Goodwyn of the Supreme Court of Virginia. They will consider the motion for Farrell's dismissal and Marston's response at 1 p.m, on Friday in Fairfax.

Renner filed her petition requesting a recount after the results of the city council race showed her finishing 15 votes behind Bates. She also finished 16 votes behind Jeffrey C. Greenfield.

Fairfax City Council

*The six winners of Fairfax City Council race in the Nov. 8 General Election, as certified by the Fairfax Board of Elections.

Farrell told Patch that was another reason why it was important to include all the winning candidates. Since the recount could push Renner and Bates past Greenfield or another candidate, all the winning candidates should have a say in the proceedings.

Farrell also disagreed with language in the original petition calling for rejected ballots or those considered invalid to be considered in the recount, citing the following passage from the Code of Virginia:

"The recount of the votes shall be based on votes cast in the election and shall not take into account (i) any absentee ballots or provisional ballots sought to be cast but ruled invalid and not cast in the election, (ii) ballots cast only for administrative or test purposes and voided by the officers of election, or (iii) ballots spoiled by a voter and replaced with a new ballot."

Related: Ana Renner Requests Recount In 2022 Fairfax City Council Race

Azcarate agreed with Farrell and the language was removed. After the hearing, Marston told Patch he may consider filing a motion related to the original language later in the week.

The rest of Monday's hearing focused on the procedures the court would follow if the recount moved beyond Friday's hearing.

Virginia statute requires that the recount be conducted by the chief precinct officers and deputy officers who worked during the Nov. 8 election. Since Fairfax City's six precincts would not create a large enough pool of candidates, Azcarate supported the two sides' agreed upon solution of including any sworn election officer within the city. Each side would also have an equal number of representatives to monitor the recount.

Azcarate approved Marston's request to borrow Unisyn OpenElect Optical Scanners from Loudoun County, which would count the votes faster than the voting equipment used by Fairfax City. On Wednesday, Dec. 14, the Fairfax City General Registrar will run a test of the scanning equipment.

All parties will convene at 9 a.m., on Thursday, Dec. 15, in the large jury room at the Fairfax County Courthouse to conduct the recount. The process is expected to last all day.