29 Nov 2013
November 29, 2013

#VAAG: Herring Wins, Recount Next

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On Monday (Nov. 25, 2013), the Virginia State Board of Elections certified Democratic Attorney General candidate Mark Herring as the official winner, completing the first Democratic sweep of statewide offices since 1989.  Because the margin was 165 votes out of 2.2 million cast — within 0.5% — the official loser, Republican Mark Obenshain has the right to demand a taxpayer-funded recount, and he excercised that right on Wednesday (Nov. 27, 2013).

Some key points about election recounts in Virginia

  • The Rules – Recounts in Virginia are governed by the Virginia Code, Title 24.2 – Elections, Chapter 8 – Recounts and Contested Elections; Virginia State Board of Elections (SBE) regulations, 1VAC20-80-20; and SBE Guidance, including recount Basics, instructions , and handcounting of paper ballots – See generally SBE Website.
  • It’s a recount – A recount is a simple redetermination of votes cast on election day.  Recount officials – who must have also worked the polls on election day – are only counting the ballots that were previously cast.  As noted by the SBE, a voter’s eligibility to vote or any alleged irregularities cannot be questioned during a recount.  This means that questions about whether a voter was eligible or whether absentee or provisional ballots were properly counted (or not) cannot be revisited.  See Va. Code § 24.2-802(B).
  • Costs – If the margin is between 0.5 and 1%, the candidate must pay for the recount, but since the margin here is less than 0.5%, Virginia’s counties and cities are responsible for paying those costs.  Va. Code § 24.2-802(E), (F).  The candidates, however, are responsible for their own observer, legal, and other costs.
  • Petition – The losing candidate requesting a recount of an election for a statewide office must file a petition requesting a recount with the Circuit Court of the City of Richmond within 10 days of the election certification, Va. Code § 24.2-801, and the Obenshain campaign did that on Wednesday.
  • Process – The recount is overseen by a three-judge panel — the Chief Judge of the Richmond Circuit Court, Bradley B. Cavedo, and two other judges appointed by the Supreme Court of Virginia.  Next week, the Chief Judge will hold a preliminary hearing, and the panel will then set the schedule and determine the recount rules.
  • Timing  – The court has not yet set the sechedule, but the recount is predicted to last only a few days and occur in mid-December, 2013.
  • History – Two recent statewide races resulted in recounts:  The 2005 Attorney General’s race (Bob McDonnell v. Creigh Deeds) and the 1989 Governor’s race (Douglas Wilder v. Marshall Coleman).  In 1985, after the recount, McDonnell’s margin went from 323 to 360 (+37) votes [total votes cast 1,943,250]; in 1989, Wilder’s margin went from 6,741 to 6,854 (+113) votes [total votes cast 1,789,078].  The closest statewide election in Virginia history, however, was the 1860 presidential race in which Constitution Union Party candidate John Bell beat Southern Democratic Party candidate John Breckinridge by 156 votes [total votes cast 166,891].  Breckinridge did not request a recount.

How the recount works

The details of the recount process differs depending on the voting system used.  Virginia allows local government flexibility in voting systems, subject to state certification requiresments, and a number of different machines and systems are used.  Different recount procedures are used for the different types of systems.

  • Although they are generally being phased out, many of Virginia’s jurisdictions use touch-screen direct-recording electronic machines (DREs) that lack a voter-verified paper audit trail.  For such systems, only an electronic review of the vote totals is possible.  A review of votes cast on DREs in Virginia involves opening and examining the printouts from the DREs.  The court may order that the count be printed again or the counters examined.  Va. Code, § 24.2-802 (D) (2).
  • Paper ballots initially counted by hand are also to be recounted by hand.  Va. Code § 24.2-802 (D) (1).  These would include provisional ballots, paper absentee ballots, and any other paper ballots that are not readable by optical scan machines.
  • Increasingly, localities use optical scan ballots, which are fed through an optical scan reader or tabulator.  The recount procedures require these ballots to be rerun and retabulated by machine.  Automatic tabulators must be tested prior to retabulation, and for recounts, are set to count the votes only for the office in question.  Va. Code § 24.2-802(D)(3).  The Virginia Public Access Project estimates that there were a total of 712,000 such optical scan ballots.
  • The most interesting area for the recount will likely be optical scan ballots that contain “write-in votes, overvotes, and undervotes,” and “any ballots not accepted by the tabulator, and any ballots for which a tabulator could not be programmed to meet the programming requirements” (i.e. that cannot separate out over and under votes) – these ballots must be counted by hand.  An “undervote,” in this case, means that the voter did not cast a recorded vote in the AG’s race.  This would not be unusual – This year about 18,000 more people voted in the governor’s race than the AG’s race; since 2001, the governor candidates received between 30,000 and 42,000 more votes than the AG candidates.  If an “undervoted” ballot actually contains a vote, it will be counted.  An overvote describes the situation where the ballot appears contain votes for both candidates in the AG’s race – such ballots are not counted.  The SBE guidance on handcounting provides examples to be used to determine a voter’s intent.
  • Note that all votes for an office may only be recounted one time each election; no additional recounts may take place, as the law specifies that:  “There shall be only one redetermination of the vote in each precinct,” and “The recount proceeding shall be final and not subject to appeal.”  Va. Code § 24.2-802 (D), (H).

Will the recount change the election result?

This was a close election, but the intitial canvass – that took place the week after election day when each city and county electoral board counted the votes and checked them twice – was probably the most closely scrutinized ever.  See tweets from Dave Wasserman @redistrict, Ben Tribbett @notlarrysabato, and others.  The SBE certification process changed the margin by adding a single vote to Herring’s total.  The most common vote changes happen between election night and the end of the canvass when transposed numbers (e.g. reporting a precinct result as 612 instead of 162) are corrected or ballots that were not counted are counted.  It is likely that those errors have been fixed.  More voters used optical scan ballots this year than in 2005, however, and the recount process of these ballots (especially as it relates to counting of undervotes) could result in some changes.  But a lot of these ballots were cast in Northern Virginia, which went heavily for Herring.  My bet is that the recount will re-confirm Mark Herring as Virginia’s Attorney General.

What about a “contest”?

A contest is a different process than a recount – here the losing candidate contends that some irregularity occured that would have probably impacted the outcome of the election.  After a litigation-types discovery process, the Virginia General Assembly, with the House of Delegates and the State Senate sitting in joint session, picks a winner.  Va. Code §§ 24.2-803, 804.  A candidate can file a contest after a recount is completed.  In 1989, Coleman brought such a contest, alleging, inter alia, that polls were open too late in some Democratic areas, but he dropped it before going too far.  Some Republicans, including the Chair of the GOP-controlled State Board of Elections, have questioned the GOP-controlled Fairfax Electoral Board’s decision to provide adequate an opportunity, within the stautorily-allowed time period, to consider provisional ballots.  Neither this complaint, nor anything else mentioned thus far, comes close to allegations of misconduct that would justify a contest.  More on this later, if necessary.

Thanks to Steve Bunn for assistance with this post.

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