Judges Exclude 26% of Ballots in Va. Recount

By Carol Morello
Washington Post Staff Writer
Saturday, December 10, 2005

A three-judge panel in Richmond decided yesterday that more than 500,000 ballots cast in the attorney general's race will not be recounted and run again through tabulating machines.

The ruling was a setback to Democratic Sen. R. Creigh Deeds, who trails Republican Del. Robert F. McDonnell by 323 votes out of 1.94 million cast in the Nov. 8 election. After McDonnell was certified the winner, Deeds requested the recount, scheduled to take place over two days beginning Dec. 20.

Joseph Kearfott, Deeds's attorney, had argued that all paper ballots counted on optical scan machines should be rerun through tabulators to ensure an accurate recount. The Deeds campaign had hoped to pick up some "undervotes" that had not been counted by the machines.

"Here there is a meaningful chance that a full recount . . . could result in the difference in the election," Kearfott said in court, according to the Associated Press. "You owe it to the candidates and to the state of Virginia."

"Undervotes" is the term used when a machine records no vote. That can be the result of a voter's decision not to vote for either candidate. But in some cases, Kearfott said, they occur when a voter mistakenly marks the ballot outside the lines or in some other fashion that the tabulator cannot recognize.

Jean Jensen, secretary of the state elections board, said that Deeds's proposal would have meant that as many as 135,000 ballots would need to be examined by hand.

William Hurd, McDonnell's attorney, said that would increase the likelihood of human error and argued that only ballots that were illegible or unclear in some fashion should be scanned again.

"It's not a victory for Bob McDonnell; it's a victory for all the voters of Virginia," said John Phillippe, a McDonnell spokesman, recalling the chaotic recount in Florida during the 2000 presidential election. "The ruling today means we will not subject ballots to potentially arbitrary and circuslike hand-counting. This protects the integrity and accuracy of the process."

In a petition filed with the court, Deeds's attorneys said there were 929 undervotes in the race in Chesterfield County and 1,393 undervotes in Virginia Beach. In addition, the petition included an affidavit from a member of the Gloucester County Electoral Board in which he said printouts from the optical scan machines recorded 78 uncounted ballots.

Virginia voters cast their ballots on five types of machines. About 30 localities used optical scanners for votes cast on Election Day, and about 50 used them to count absentee ballots.

But the three Circuit Court judges -- Chief Judge Theodore J. Markow, Judge Larry Kirksey and Judge Wilford Taylor -- ruled that Deeds had not proven there were enough miscounted ballots to change the election results.

Disputes over the printouts that will be examined will be taken to the judges, who may order them scanned again, the judges said.

"We're happy the optical scan ballots will be allowed to be rerun on a case-by-case basis," said Mark Bergman, a spokesman for Deeds. "But in the end, this ruling leaves more questions than answers."

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