Attorneys In Fairfax City Recount Swap Motions Ahead Of Friday Hearing

Updated (7:15 p.m.): This story was updated with information from Chris Marston's opposition brief.

FAIRFAX CITY, VA — Attorneys representing the two candidates involved in a recount of the 2022 Fairfax City Council election swapped motions in Fairfax County Circuit Court this week ahead of Friday's opening hearing before the full recount court.

An attorney representing Fairfax City Councilmember-elect Billy M. Bates filed a motion in Fairfax County Circuit Court on Wednesday seeking to dismiss a petition requesting the recount.

The motion filed by John W. Farrell of McCandlish Lillard on Bates' behalf says that Anahit N. "Ana" Renner's petition should be dismissed because it failed to include all of the winning candidates in the city council race. She also did not notify them within 10 days of the election being certified, as required under Virginia law.

"A meaningful and proper recount that affords equal weight to all votes must include all candidates," Farrell says, in his motion. "Otherwise, there is a very real possibility that different counting standards will be applied to votes for different candidates in the same election in violation of due process and equal protection guarantees. This is particularly so where, as here, the margin between bates and the fifth place vote-getter, [Jeffrey C.] Greenfield, was only one (1) vote."

Renner's attorney, Chris Marston of 2652 Group LLC, filed an opposition brief on Thursday afternoon, saying that the court was within its rights to name additional parties to the petition.

"Respondent's motion should be denied because the statute's plain language (after its 2020 amendment) requires Petitioner to name one apparently elected candidate in her petition," Marston's motion says. "Even under the former statute, recount courts reached different conclusions on the proper parities to a recount. Should the Court believe that there are additional necessary parties, it may join them without prejudice to any party or delay in its proceedings."

Renner, who finished 15 votes behind Bates and 16 behind Greenfield when the votes for the Nov. 8 election were tabulated, filed her petition requesting the recount on Nov. 21. The only winning candidate mentioned in the petition is Bates.

The Nov. 8 ballot asked voters to choose from nine candidates running to fill the six seats on the Fairfax City Council. Since a recount could conceivably give Bates and Renner more votes than Greenfield or affect the final vote totals of the other winning candidates, those candidates should've been included in the petition, according to Farrell.

"At the very least, there were 7 candidates seeking votes for the 'office at issue,'" his motion says, quoting the relevant state statute. "All 7 are necessary parties to any recount."

Marston disagreed with Farrell's interpretation of the statute describing the number of necessary parties to this recount.

"The Code gives no indication that a candidate in a multi-seat election who is the top vote getter by a wide margin should be subject to a recount based because the different in votes between two candidates who finished with many fewer votes is small," Marston writes in his motion. "In short, the recount statute does not require that a petitioner in any multi-winner-election must name all apparently elected candidates as respondents."

In support of his position, Marston referenced a 2018 recount in Virginia Beach where three candidates were seeking an at-large seat on the city council in which the two top vote-getters would be elected.

In that case, the third-place finisher filed a recount petition against the second-place finisher. The court did not require the petitioner to add the first-place finisher nor dismiss the case because they hadn't. The recount was allowed to continue.

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, Renner needed to notify all six winning candidates on Monday.

Since each of the winning candidates has a stake in the recount's outcome, all of them should be involved in the decision-making process for conducting the recount, according to Farrell.

On Monday, Fairfax Circuit Court Judge Penney Azcarate convened a preliminary hearing with Bates and Renner's attorneys to hammer out the details of the recount. Among other things, they agreed upon what type of scanners were going to be used to count the ballots and that the recount would take place on Thursday, Dec. 15, in the large jury room at the Fairfax County Courthouse.

All of the winning candidates should have participated in making those decisions, but they didn't because Renner failed to notify all of them within the 10 days as required by Virginia law, according to Farrell's motion.

"Because the Petitioner chose to not to name all six (6) of the victorious candidates in her Petition and chose not to properly serve them, despite the fact that they are all necessary parties, and because there is no way, even if the other five (5) victorious candidates are added now that they will be able to meaningfully participate in the recount, this matter should be dismissed," Farrell's motion says.

In 2016, Jeffrey Greenfield initially lost to incumbent Fairfax City Councilmember Nancy Loftus by three votes. After filing a request for a recount with the Fairfax County Circuit Court, Greenfield was declared the victor by a three-vote margin following the recount.

In that case, the court determined that all victorious members of the election must participate in the recount, according to Farrell's motion. At that time, all of the other candidates agreed without objection to be added to the recount.

A similar petition the same year in the Town of Herndon was dismissed because the petitioner failed to name all of the six winners in the 2016 town council race, Farrell writes.

Marston notes in his motion that additional candidates were added in the 2016 Greenfield case and the recount was able to continue, so the current petition should also continue.

"If this Court determines that candidates who received more votes than Respondent and Petitioner are necessary parties to the recount, it should join them and may do so without prejudice to their interests or delay of the recount, just as in [Greenfield v Loftus]," Marston says in his response. "'No action ... shall be defeated by the nonjoinder ... of parties, ... new parties may be added ... by order of the court at any time as the ends of justice may require' (emphasis added). And the court may treat any new parties as if they had been named in the initial petition."

In regard to Greenfield's role as the fifth-place finisher in the 2022 election, Marston said that Greenfield had told him that he would not object to being added as a party to Renner's petition to recount.

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 Farrell's motion for dismissal and Marston's response, at 1 p.m, on Friday in Fairfax.

Related:

• Motion To Dismiss Fairfax City Council Recount To Be Filed This Week
• Court Hearing Set For Recount Of Ballots In Fairfax City Council Race
• Ana Renner Requests Recount In 2022 Fairfax City Council Race