However, the U.S. District Court judge in Richmond removed the McCain-Palin campaign as the plaintiff in the lawsuit and inserted the U.S. Justice Department, WVIR-TV in Charlottesville, Va., reported.

The campaign staff for the Republican presidential-vice presidential ticket of U.S. Sen. John McCain of Arizona and Alaska Gov. Sarah Palin, had sued the State Board of Elections, contending some absentee ballots weren't sent out soon enough to be counted.

The U.S. Department of Justice and U.S. attorney general's office now will seek to have the state elections board compel cities and counties in Virginia to count certain overseas and military absentee votes that arrived as late as Nov.14, WVIR-TV said.

"We're disappointed that the judge would say that we are no longer be in the case, but we are pleased with what we have achieved thus far," said Bill Hurd, an attorney representing the McCain-Palin campaign. "We have made sure that the ballots that came in late are being safeguarded and in December, hopefully, the judge will decide they'll be counted as well."

About 5,000 absentee ballots were received after the initial deadline and before Nov.14, but only some fall under the requirements for overseas and military voters at play in this case, the TV station said.