Virginia Senate Recount -- Frequently Asked Questions

What determines whether a recount can take place?

When would a recount begin?

Who pays for the recount?

What is the procedure for a recount?

Are candidates allowed to challenge individual votes during the recount?

What other ways can a losing candidate challenge the result?

What recourse does the loser of a recount have?

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What determines whether a recount can take place?

From Code of Virginia 24.2-800: "When there is between any candidate apparently nominated or elected and any candidate apparently defeated a difference of not more than one percent of the total vote cast for the two such candidates as determined by the State Board or the electoral board, the defeated candidate may appeal from the determination of the State Board or the electoral board for a recount of the vote."

When would a recount begin?

From "Virginia Recounts -- The Basics" (available from State Board of Elections): "The apparent loser cannot request a recount until after the election is certified. ... The State Board of Elections certifies the election results for all federal offices (Presidential Electors, U.S. Senate and U.S. Congress), state offices (Governor, Lt. Governor, and Attorney General and General Assembly seats) and any offices shared by two or more localities. The State Board of Elections will meet to certify the results of the November 7, 2006 election on Monday, November 27, 2006. An apparent losing candidate has ten days from the certification date to request a recount, so the time frame for filing a request for a recount for this election is November 27, 2006, through December 7, 2006."

Who pays for the recount?

From Code of Virginia 24.2-802: "Costs of the recount shall be assessed against the counties and cities comprising the election district when (i) the candidate petitioning for the recount is declared the winner; (ii) the petitioners in a recount of a referendum win the recount; or (iii) there was between the candidate apparently nominated or elected and the candidate petitioning for the recount a difference of not more than one-half of one percent of the total vote cast for the two such candidates as determined by the State Board or electoral board prior to the recount. Otherwise the costs of the recount shall be assessed against the candidate petitioning for the recount or the petitioners in a recount of a referendum."

What is the procedure for a recount?

From Code of Virginia 24.2-801 to Code of Virginia 24.2-802: "The chief judge of the circuit court in which a petition is filed shall promptly notify the Chief Justice of the Supreme Court of Virginia, who shall designate two other judges to sit with the chief judge, and the court shall be constituted and sit in all respects as a court appointed and sitting under §§ Code of Virginia 24.2-805 and Code of Virginia 24.2-806. ...

"The State Board of Elections shall promulgate standards for (i) the proper handling and security of voting and counting devices, ballots, and other materials required for a recount, (ii) accurate determination of votes based upon objective evidence and taking into account the counting device and form of ballots approved for use in the Commonwealth, and (iii) any other matters that will promote a timely and accurate resolution of the recount. The chief judge of the circuit court or the full recount court may, consistent with State Board of Elections standards, resolve disputes over the application of the standards and direct all other appropriate measures to ensure the proper conduct of the recount.

"The recount procedures to be followed throughout the election district shall be as uniform as practicable, taking into account the types of ballots and voting devices in use in the election district.

"Within seven calendar days of the filing of the petition for a recount of any election other than an election for presidential electors, or within five calendar days of the filing of a petition for a recount of an election for presidential electors, the chief judge of the circuit court shall call a preliminary hearing at which (i) motions may be disposed of and (ii) the rules of procedure may be fixed, both subject to review by the full court. ...

"The chief judge, subject to review by the full court, may set the place or places for the recount and may order the delivery of election materials to a central location and the transportation of voting devices to a central location in each county or city under appropriate safeguards.

"After the full court is appointed under § Code of Virginia 24.2-801 or § Code of Virginia 24.2-801.1, it shall call a hearing at which all motions shall be disposed of and the rules of procedure shall be fixed finally. The court shall call for the advice and cooperation of the State Board or any local electoral board, as appropriate, and such boards shall have the duty and authority to assist the court. The court shall fix procedures that shall provide for the accurate determination of votes in the election. ...

"The court shall permit each candidate, or petitioner and governing body or chief executive officer, to select an equal number of the officers of election to be recount officials and to count ballots, or in the case of mechanical or direct electronic voting devices to redetermine the vote. The number shall be fixed by the court and be sufficient to conduct the recount within a reasonable period. ...

"The redetermination of the vote in a recount shall be conducted as follows:

"1. For paper ballots, the recount officials shall hand count the ballots using the standards promulgated by the State Board pursuant to subsection A.

"2. For mechanical lever machines without printouts, the recount officials shall open the machines and read the counters.

"3. For mechanical lever machines with printouts and direct recording electronic machines (DREs), the recount officials shall open the envelopes with the printouts and read the results from the printouts. If the printout is not clear, or on the request of the court, the recount officials shall rerun the printout from the machine or examine the counters as appropriate."

[Procedures for recounting with optical scan tabulators and punchcard tabulators follow.]

"There shall be only one redetermination of the vote in each precinct. ...

"At the conclusion of the recount of all precincts, after allowing the parties to inspect the questioned ballots, and after hearing arguments, the court shall rule on the validity of all questioned ballots and votes. After determining all matters pertaining to the recount and redetermination of the vote as raised by the parties, the court shall certify to the State Board and the electoral board or boards (a) the vote for each party to the recount and declare the person who received the higher number of votes to be nominated or elected, as appropriate, or (b) the votes for and against the question and declare the outcome of the referendum. The State Board shall post on the Internet any and all changes made during the recount to the results as previously certified by it pursuant to § Code of Virginia 24.2-679."

Are candidates allowed to challenge individual votes during the recount?

From Code of Virginia 24.2-802 "As part of the preliminary hearing, the chief judge may permit the petitioner and his counsel, together with each other party and his counsel and at least two members of the electoral board and the custodians, to examine any mechanical or direct electronic voting device of the type that prints returns when the print-out sheets are not clearly legible. The petitioner and his counsel and each other party and their counsel under supervision of the electoral board and its agents shall also have access to pollbooks and other materials used in the election for examination purposes, provided that individual ballots cast in the election shall not be examined at the preliminary hearing. ...

"The determination of the votes in a recount shall be based on votes cast in the election and shall not take into account (i) any absentee ballots or provisional ballots sought to be cast but ruled invalid and not cast in the election, (ii) ballots cast only for administrative or test purposes and voided by the officers of election, or (iii) ballots spoiled by a voter and replaced with a new ballot.

"The eligibility of any voter to have voted shall not be an issue in a recount. Commencing upon the filing of the recount, nothing shall prevent the discovery or disclosure of any evidence that could be used pursuant to § Code of Virginia 24.2-803 in contesting the results of an election."

What other ways can a losing candidate challenge the result?

From Code of Virginia 24.2-805 through 24.2-809: "In an election of electors for the President and Vice President of the United States, or a primary for the United States Senate or any statewide office, the proceeding to contest shall be in the Circuit Court of the City of Richmond before a special court composed of the chief judge of such circuit court and two circuit court judges of circuits not contiguous to the City of Richmond appointed by the Chief Justice of the Supreme Court of Virginia. ...

"The complaint shall contain (i) objections to the eligibility of the contestee based on specific allegations, (ii) objections to the conduct or results of the election accompanied by specific allegations which, if proven true, would have a probable impact on the outcome of the election, or (iii) both.

"The contestant shall file his complaint in the clerk's office of the circuit court within thirty days following the date of the election in the case of a general election, and within ten days following the date of the election in case of a primary election or special election held on a date other than that of a general election. ...

"The contestee shall, within ten days after the complaint is served on him, file in the clerk's office an answer, in which he shall admit or deny the allegations on which the contestant relies, or state that he has no knowledge or information concerning an allegation which shall be deemed denial, and state any other defenses, in law or fact, on which he relies. If no answer is filed within the time prescribed, the contestee shall not be heard to assert any claim or objection which is required by this section to be stated in the answer.

"After service of a copy of the complaint and after reasonable notice to the other party or parties, any party shall be authorized to take depositions to sustain or invalidate the election. The proceedings shall take precedence over all other business of the court or of any of the judges and shall be heard and determined as soon as possible. The contest shall be heard and determined without a jury, on the testimony thus taken and on any other legal testimony that may be adduced by any party. In judging the contest, the court shall proceed on the merits thereof and decide the same according to the Constitution and statutes of the Commonwealth.

"When the contest is decided, costs shall be taxed against the candidate filing the complaint if he is unsuccessful, or, if he is successful, against the counties and cities included in the area in which the election was held.

"If the court decides that there has been no valid election of any person, it shall declare the election void and the vacancy shall be filled in conformity with §§ Code of Virginia 24.2-226 and Code of Virginia 24.2-227."

What recourse does the loser of a recount have?

Code of Virginia 24.2-802 reads, "The recount proceeding shall be final and not subject to appeal." However, according to 24.2-814, "A candidate in a primary or an election to office, who was originally declared a winner and subsequently loses as the result of a recount, may file either (i) notice of his intent to contest the result ...or (ii) a written complaint. ... Such notice or complaint shall be filed within 10 days following the date of the entry of the order of the recount court."