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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-

P to our free and democratic society
than the right to vote and the right to
expect fair and valid results of every election.
tant but tedious procedure.
For example, during the infamous
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.

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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. Warner recount. Walter A. Marston Jr. allowed under a contest. In such instances, the
and Anthony F. Troy were present as former presumed winning candidate had to remind the
counsel for Andrew Miller. R.D. McIlwaine III recount court that the petitioner’s request was a
was present as former counsel for John Warner, disguised attempt to conduct discovery for a con-
and Robert H. Patterson Jr. was present as spe- test proceeding and thus, had nothing to do with
cial counsel for the State Board of Elections. the recount process.
And essentially their discussion of record that A good example came the following year
day provided most of the drafting points for sub- in the 1982 recount of the election for the Ninth
stitute Senate Bill No. 738 that eventually Congressional District seat between incumbent
became the basic framework for Virginia’s William C. Wampler and the winner of that
current recount statute. As a result of election, Fredrick C. Boucher.
Miller’s experience, this new law also required In a motion filed by Wampler’s counsel,
localities to bear the costs of the recount William H. Hurd asked that recount court to
when the margin of loss was one-half or less of incorporate into its recount procedures instruc-
one percent. tions for officials to observe and make record of,
among other things, whether or not voting
machine doors were found locked and sealed.
The General Assembly Adjusts The motion went on to identify irregularities in
In 1981, the General Assembly made further the voting procedures “that bear upon the
adjustments in Virginia’s recount law but also recount process” including specific allegations of
broke new ground by rewriting the rules for a multiple voting, tripping election machines to
contest of election. This new ground, however, allow voters to cast more than one vote, and the
would usher in an era of tension between the use of distilled spirits “in connection with
concepts of recount and contests. In essence, the soliciting votes at the polls.” That recount court
adjustments forced any losing candidate to file a denied the motion.

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The Virginia News Letter

Thereafter, the application of Virginia’s marked vote on the paper with the human eye.
recount laws depended on which circuit court Rather, these “computer friendly” and often very
and the three judges appointed to hear the case. small markings are primarily designed to produce
Virginia law requires the chief judge of the circuit efficiency in vote returns. That is not to say that
court where the petition for recount is filed such votes cannot be ascertained by human
to preside over the judicial panel. The Chief examination of such paper. However, to do so
Justice of the Supreme Court of Virginia would require a higher degree of care and proce-
designates the two other judges to sit with the dure in order to effectively mitigate the signifi-
chief judge. cantly higher risk of human error than when
Given the relative infrequency of recounts counting ordinary paper ballots.
Differences in and the random nature of where one may occur,
typically most judges involved in a recount are
recount procedures interpreting the recount statutes for the first time Modern Voting Technology
in their judicial careers and must reach a consen- When considering the kinds of recount proce-
sus with other similarly situated judges as they dures for paper-related modern voting technology,
render each decision. As a result, mild to signif- four kinds have been or are currently present in the
icant differences in recount procedures have been statutory scheme and/or in various recount court
applied among various circuit courts. It was not precedents around the Commonwealth: 1) solely
uncommon for the same opposing counsel to be review the printout sheets from the voting tech-
involved in more than one recount and to have nology used on election day, 2) during the recount,
one or more significant differences in the proce- rerun some or all of the paper ballots through the
dures between the multiple recounts. voting machine, 3) manually inspect and count
I should also point out that while Virginia each paper ballot in lieu of running them through
law often results in the appointment of judges the voting machine or 4) designate one of the pre-
who have limited experience in these kinds of vious procedures as the primary procedure and
cases, such has not been the same for attorneys another as a contingency procedure.
experienced with recount legal proceedings. To Generally speaking, the arguments in sup-
their credit, attorneys Anthony F. Troy and port of and against such procedures are based on
William H. Hurd have exceptionally distin- a variety of legal theories.
guished themselves, most often as opposing lead With respect to the first procedure (solely
counsel to each other, in the representation of reviewing the machine printout), after experi-
many of the candidates who have unwittingly menting briefly with other procedures, Virginia’s
become part of a recount. Both attorneys have current recount statutory scheme favors this
had to navigate through the various precedents approach, in part, to avoid the significant risk of
they helped to set over the years while represent- error associated with the other procedures. The
ing both winning and losing candidates and law suggests that when there is no evidence of
while preserving the integrity of the recount problems or defects with a voting machine, there
process. is no basis to question the original information
Many of those precedents relate to the reported on the machine printout except for cor-
proper procedures to conduct a recount when recting transcription errors or ministerial errors.
more modern and sophisticated voting technol- On the other hand, it has been successfully
ogy is involved. Although new methods of vot- argued that the statutory scheme does give the
ing technology are touted for their accuracy and recount court significant discretion to choose
efficiency through the use of machine or com- other procedures for recounting paper ballots
puter tabulation, they are not without the poten- related to voting machines.
tial for error. As such, many legal arguments The arguments against solely reviewing the
have been developed and statutory changes have machine printout are also generally the arguments
occurred since the advent of such technology. in favor of the second (rerunning the ballots)
Interestingly, most so-called “modern” vot- and/or the third (manual hand recount) proce-
ing technology used in Virginia involves some dures. These arguments reason that because
form of paper that is marked by the voter in a paper ballots are involved, the ballots associated
special fashion and then is read and counted as a with the machines should be treated in the same
vote utilizing the technology. Furthermore, the manner as ordinary paper ballots and thus
marking of such paper is typically not intended should be recounted by either rerunning them
to be “people friendly” so as to easily ascertain the through the machines (similar to election day) or
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Weldon Cooper Center for Public Service • February 2006

by manually recounting each paper ballot. It is through the machines as part of its procedure.
further argued that paper ballots used in voting The punch card system has since been elimi-
machines still represent the “best evidence” of the nated from all Virginia jurisdictions with the last
vote and are far more reliable in determining the jurisdiction finishing the use of this voting tech-
correct vote through either procedure than nology in November 2005.
merely looking again at the machine printout Another form of modern voting technol-
sheet from Election Day. ogy currently in use throughout the
Commonwealth is so-called “optical scan tech-
nology.” This technology requires the voter to Eliminating the
The Hanging Chad mark his or her vote on a user-friendly type of
If there is a grandfather of such paper ballot vot- paper ballot. Then the voter inserts the ballot
punch card
ing technology, it is the infamous “punch card into a computerized ballot tabulator. The tab- system
system” where the voter was required to punch ulator reads and stores the votes and produces
out the correct little “chad” on a card that then the results on a printout sheet. While certainly
was fed into a machine to record the vote. a more improved form of voting technology
This form of voting technology became when compared to the punch card system,
infamous because of the so-called “hanging the same legal arguments regarding such
chad” where the chad was not completely severed recount procedures still apply to optical
from the card and was hanging by typically one scan technology.
or two points. This always sparked a fierce Prior to 2001, Virginia’s recount statute
debate as to whether a hanging chad indicated an did not explicitly provide whether optical scan
actual vote or a defect in the card. Thus the can- and punch card ballots should be recounted by
didate petitioning for a recount typically pre- either reviewing the machine printouts, rerun-
ferred a manual hand recount of such cards by ning the ballots, or manually recounting the
careful inspection with the hope that the human ballots. Consequently, a significant number of
eye would catch something that the machine did court precedents permitted the wholesale
not. Most people familiar with the 2000 presi- rerunning of optical scan ballots as part of
dential elections recount in Florida still recall their recount procedures.
images in the news media of recount officials However, in 2001, the General Assembly
painstakingly lifting each punch card to the light experimented, albeit briefly, by enacting a provi-
to see if a tiny hole was made and then noting its sion in the recount statute that required all opti-
placement on the card in order to determine the cal scan and punch card ballots to be rerun
correct vote. through the applicable machines. After the rec-
As mentioned earlier, long before the infa- ommendations of a subsequent legislative study
mous Florida recount, many recount petitioners in December 2001, the 2002 General Assembly
in Virginia sought manual hand recounts for repealed the mandatory rerun ballot provision of
punch card ballots. Often they were without suc- 2001. Instead, a new law was adopted that made
cess. For example, in 1987, the Henrico County the review of machine printouts the principle
Circuit Court denied the request of James A. procedure for recounts in jurisdictions using
Donati Jr. for such a hand count in a local super- optical scan and/or punch card voting systems.
visor race where he was down by 34 votes to There are exceptions to the machine
Anthony P. Mehfoud. Donati’s counsel urged printout review procedure. Specifically, the
this procedure “since a punch card is a permanent statute instructs recount officials to first examine
record of ballots cast.” But Mehfoud’s counsel the machine printout to redetermine the vote.
warned that such a manual recount “would be Only if the printout is not clear or in circum-
fraught with tabulation errors.” The court sided stances where the court orders such, the recount
with Mehfoud and ultimately reaffirmed the officials shall rerun all the ballots through the
exact results from Election Day by only review- applicable machine. Thus, the statute still gives
ing the machine printouts. discretion to the court on this matter. The
Similarly, in 1989, Marshall Coleman machine must be programmed to only count
requested the same procedure in his recount peti- votes for the specific election and to set aside all
tion after his gubernatorial race against Douglas ballots containing write-in votes, overvotes, and
Wilder. The recount court denied Coleman’s undervotes. Those ballots set aside and any bal-
request for a manual hand recount but instead lots not accepted by the machine would then be
ordered the rerunning of punch card ballots manually hand recounted.

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The Virginia News Letter

Subsequently, in 2003, two recount courts The presiding chief judge, Theodore V.
ordered that machine printouts from the optical Markow of Richmond, was presiding over two
scanners be examined first for the recount recounts at that time. The second was for a
results. One recount court further ordered that House of Delegate election between Bradley P.
the paper ballots be rerun through the machine Marrs and Katherine Waddell. In delivering the
if the printouts were illegible. The other recount panel’s ruling in the Deeds case, Markow stated
court further allowed the petitioner to reserve that Deeds had not made the case for a broad
his right to renew his motion “should problems rerun of such ballots with significant evidence
or concerns develop” which would justify the that many such votes weren’t counted.
court’s reconsideration. By contrast, a third As a result, Markow ordered the recount
recount court ordered the re-running of all procedures to follow the basic statutory scheme
paper ballots as part of its recount procedure of 2002 and thereby examine the machine print-
without regard to machine printouts from out to redetermine the vote and that only if the
Election Day. It is worth noting that the differ- machine printout was unclear would considera-
ence in that election was only a two-vote margin tion be given to rerun the ballots. Marrs met the
between the candidates—which may have same fate in his similar request to rerun optical
impacted that recount court’s decision. scan ballots through the voting machines.
As the recount day drew near, Deeds’ legal
team made another attempt to obtain a broad
The Closest Election in History rerun of optical scan ballots. However, this time
The closest election outcome in the history of they asked the recount court to rerun optical
Virginia occurred after the completion of the scan ballots in 140 specific precincts and punch
2005 Attorney General election recount card ballots in 16 specific precincts where the so-
between Creigh Deeds and Bob McDonnell. called “undervote” in the Attorney General’s
The margin of difference was a razor thin .01% race exceeded three percent of the total
with an ultimate 360-vote margin in favor of votes cast.
McDonnell. It was also only the second Under Virginia law, an “undervote” is
statewide election recount to occur in modern defined as a ballot on which a voter casts a vote
Virginia history. Interestingly, the lead opposing for a lesser number of candidates than the num-
attorneys were the same ones who argued the ber for which he or she are entitled to vote.
Coleman v. Wilder gubernatorial recount 16 years Undervotes can be a result of a voter’s intention
earlier, William H. Hurd for McDonnell and not to vote in that race or the failure to count the
Joseph C. Kearfott for Deeds. There was one vote. However, in order to make this argument,
significant difference than before: This time Kearfott relied on the general claim that
Kearfott argued about recount procedures on allegedly high undervote rates were an indicator
behalf of the candidate behind in votes instead of that significant numbers of ballots in those spe-
that burden falling onto Hurd as it did in 1989. cific precincts were unlikely counted by the
The main issue during that recount pro- machines on Election Day.
ceeding was the court’s decision on how to In addition to questions about the
recount an estimated one-half million optical properness and accuracy of Kearfott’s motion,
scan ballots. Kearfott wanted the court to rerun McDonnell’s legal team responded with
all of the paper ballots through the machines an unusual expert witness, an astrophysicist
while Hurd wanted a review of the machine from the University of Virginia who graphed
printouts from Election Day. and analyzed the distribution of statewide
Not surprising, the court heard many of undervoting percentages in the Attorney
the same arguments previously discussed in this General’s race using established statistical
essay. Jean Jensen, secretary of the State Board methods of inquiry. His analysis concluded that
of Elections, testified before the court that in there was nothing statistically abnormal in the
nine Virginia localities, because of machine pro- rate of undervotes across Virginia in the precincts
gramming deficiencies, some 135,000 optical identified by Deeds in the 2005 Attorney
scan votes would have to be “looked at individ- General race.
ually by officials” before they could be rerun. However, Markow’s panel this time gave
Seizing upon her comments, Hurd argued that some limited relief to Deeds. It ruled that nine
to grant Kearfott’s request would “create an precincts in Gloucester County and one precinct
awful, awful mess.” in Lynchburg were to manually hand recount all

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Weldon Cooper Center for Public Service • February 2006

optical scan ballots. As a result, McDonnell Fortunately, Virginia’s rich history of expe-
gained some additional votes after the manual rience in this area continues to evolve as such
hand recount. new circumstances occur. The crux of any
The outcome of that recount court’s recount related policy is the absolute need to
decision raised important questions: assure and provide voters with a proper and
First, if optical scan machines were in accurate vote. However, to do so requires a very
error, as Kearfott argued, was such a claim an delicate balance in the legal framework of this
argument for a contest proceeding similar to the critical area of public policy. That balance must
ruling of the court in the Oberndorf case? provide for procedures that effectively detect pos-
Second, would evidence of significant sible errors in the vote count from Election Day
undervotes in precincts using paper-related without creating additional errors (or the signifi-
voting machines and the subsequent speculation cant potential for additional errors) in the very
as to the cause of such undervotes be sufficient process intended to find and correct them.
evidence for future recount courts to favor
broader procedures than simply the examining
machine printouts from election day? ABOUT THE AUTHOR: Kirk T. Schroder
Third, does the fact that the vote actually is a partner in the law firm of Schroder Fidlow,
did change in some of the precincts designated PLC. Over the years, he has served as counsel in a
by the court impact how future recount courts significant number of Virginia recount cases. In
will weigh its discretion regarding the examina- addition to his law degree from the University of
tion of machine printouts? The answers are Richmond, he holds a Doctor of Philosophy
unclear and remain to be seen. (Education) from the University of Virginia.

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VOL. 82 NO. 1 FEBRUARY 2006
Editor: William H. Wood
The Virginia N EWS L ET TER ENTERED AS
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