Vol. 82 No. 1 February 2006 The Virginia NEWS LETTER Election Recounts In Virginia By Kirk T. Schroder erhaps nothing is more fundamental own rich history regarding this very impor- to our free and democratic society tant but tedious procedure. Pthan the right to vote and the right to For example, during the infamous expect fair and valid results of every election. Florida presidential recount the so-called Former President Harry S. Truman once “hanging chad” (a reference to the little thing said, “It’s not the hand that signs the laws that for some mysterious reason is only par- that holds the destiny of America. It’s the tially punched out on a “punch card ballot”) hand that casts the ballot.” And each elec- became the subject of national curiosity and tion day, state and local election officials late-night television humor. Yet, Virginia carry out an enormous duty to properly recount courts had already long addressed that count votes and determine the correct results issue before Florida. Further, as new technolo- of each election. gies for voting methods have emerged so too While such a duty may appear to be a has Virginia’s recount procedures. relatively simple and uncomplicated task, this States vary (sometimes significantly) in is often not the case when the results of an Kirk T. Schroder the scope and procedures involved in a election are so close that a recount of election recount. In Virginia, it is especially important occurs following the election. to understand the difference between a In recent years, the recount process has recount and a contest of election. garnered intense national attention because of A recount determines the accuracy of very controversial election outcomes in the official vote count and the official results Florida (2000 presidential election) and in reported by election officials. In a recount, it Washington State (2004 gubernatorial elec- is common to correct mathematical errors or tion). Although Virginia has not suffered any- clerical mistakes in the reporting of numbers thing close to such controversies, she has her and so forth. The Virginia News Letter On the other hand, a contest of election is ballots cast for the various candidates…and the a formal challenge to the validity of the election. court finds and rules that it has no jurisdiction to A contest addresses irregularities in the conduct go further.” He also noted that under Virginia and/or the results of the election where the law the Virginia Senate had the sole authority to nature of those irregularities was such that they preside over a contest for that particular race. A would have had a probable impact on the out- Senate committee later dismissed Oberndorf's come of the election. Simply put, a contest chal- claims after it determined that not enough ques- lenges the integrity of the election itself. tionable paper ballots were used to overturn her A contest can be based on most anything loss to Babalas. that one could argue makes an election itself The distinction between a recount and a Petitions in invalid. Common claims involve fraud, voter contest would be a central point of argument in the court ineligibility and significant violations of election many later Virginia recount proceedings. As dis- procedures. Under current Virginia law, such cussed further below, losing candidates almost claims are not the proper subject of a recount. To always attempt to convince courts to order broad further this distinction, Virginia law provides recount procedures that in essence allow them to different venues to preside over such matters: conduct discovery for a possible contest proceed- specially appointed three-judge panels at the cir- ing. By blurring the distinction between the two cuit court preside over recounts and various des- proceedings, this legal strategy attempts to get the ignated bodies of the General Assembly preside court to otherwise address allegations about vot- over most contests. ing irregularities related to a contest proceeding in order to affect what votes are recounted (and not recounted) during in the recount process. The Battle in Norfolk Likewise, winning candidates almost The best example in Virginia where a recount always attempt to convince the court to limit the and a contest were properly distinguished recount procedure to clerical and ministerial occurred in 1979 in an election for a State Senate functions in hopes that that would not alter the seat in what was then a multi-member district election night outcome. Various statutory and shared between Virginia Beach and Norfolk. other developments since the Oberndorf ’s case Republican Meyera E. Oberndorf lost to have largely settled many legal arguments about Democrats Peter K. Babalas, Joseph T. the distinction between a recount and contest. Fitzpatrick and Stanley Walker. (Oberndorf fell However, as discussed later, recent court rulings short of Babalas by only 685 votes.) in the Deeds v. McDonnell recount of the 2005 In that election, there were significant vot- Attorney General election suggests that the issue ing irregularities as a result of a citywide voting may still be unsettled. machine breakdown in Norfolk. According to one newspaper account, mechanics needed sev- eral hours to repair the machines. Thousands of John Warner Prevails Norfolk residents voted on official and unofficial The genesis of Virginia’s current recount law paper ballots that also included several “guide occurred in 1978 when the former Attorney ballots” prepared by a labor union, which urged General, Andrew P. Miller, lost his bid for a U.S. voters to “vote Democratic.” In her petition to Senate seat to current Sen. John W. Warner by the Circuit Court of Norfolk for a recount, only 4,721 of the 1,222,256 votes cast — in other Oberndorf asked the court to consider the vast words, .38 percent of the total vote. voting irregularities in determining what votes to Virginia’s recount law permits losers of an recount. Ultimately, the court ruled that election to seek a recount if they lose by less than Oberndorf's margin of loss did not fall within one percent of all votes cast. However, the twist the one percent margin required by Virginia law at that time for Miller was that the law also to conduct a recount. required losing candidates to pay the cost of the As to the relationship of voting irregulari- entire recount if he or she did not prevail. Thus, ties and recounts: Norfolk Judge Thomas R. Miller was forced to raise money and seek finan- McNamara ruled that the proper venue to cial pledges to support his legal bid for a recount address alleged voting irregularities was in a con- and to cover the recount expenses if the recount test proceeding and not in a recount. In the determined that he truly did lose the election. Oberndorf case, he observed, “that there has Despite this burden, Miller decided to file his been no error in the counting of numbers of recount petition. 2 Weldon Cooper Center for Public Service • February 2006 Also at that time, Virginia’s recount statute notice to contest an election before the candidate imposed a nearly impossible deadline for the was in a position to file a petition for a recount of recount court to enter its procedural order for the that election. recount. This defect of law forced the recount Essentially, the decision to contest an elec- court to conduct a single hearing that essentially tion had to be made no later than 20 days after lasted 25 consecutive hours. During that the election while a petition to seek a recount marathon hearing, the three-judge panel made a was due 10 days after the official certification by series of rulings that ultimately became Miller’s the State Board of Elections (which typically undoing. Basically, it set pay scales for officers of resulted in the candidate having approximately elections and their supervisors at rates much 30 days to file a recount petition). Thus, in order higher than Miller’s lawyers requested. Worst of to preserve the right to contest an election, it Winners, losers all, Miller was also ordered to post an $80,000 became standard practice for a losing candidate and the General bond. Although the amount was significantly to file a contest notice before filing a recount less than the $275,000 estimated by the State petition. Assembly Board of Elections at that time, these rulings Even more problematic for the losing can- drove Miller to abandon the recount and concede didate was the additional requirement that all the election to Warner. depositions and affidavits to be used as evidence In his public concession statement, Miller in a contest proceeding had to be taken within 30 succinctly summarized his predicament: days after the election. As a result, it was not “Following the long campaign which ended last uncommon to file the notice of contest the day month, it has proven impossible to raise the after the election in order to take advantage of additional level of funding which the court’s the maximum period of discovery allowed by order would require.” that law. Because this happened to the former It then became a natural course for recount Attorney General and could possibly happen to petitioners to try to convince recount courts to future candidates, including themselves, mem- incorporate seemingly harmless methods to bers of the 1979 Virginia General Assembly inquire into alleged election irregularities. As a took swift action to overhaul Virginia’s recount practical matter the recount procedure was laws. On Feb. 1, 1979, a Senate committee held arguably the best time to collect such informa- a discussion with the legal teams involved in the tion as opposed to the limited discovery period Miller v.