Judge Denies Request to Speed Recount in Delegate Election

As lawyers and politicians sparred yesterday over the validity of a vote count in a close special election last week in Alexandria, one of the city's seats in the House of Delegates remained empty.

At a preliminary recount hearing, attorneys for Charniele Herring (D), the state-certified winner of the election for the 46th House District seat, asked chief Alexandria Circuit Court Judge Donald M. Haddock Sr. to move up the recount date, set for Monday. Her lawyer said that further delay would deprive her of the chance to introduce legislation in Richmond. The deadline to submit bills is tomorrow.

"Right now, we're completely without representation," said Jim Lay, Herring's attorney. "We haven't been invited to the party."

Haddock did not change the schedule. Lawyers and legislators on both sides argued questions of law and fairness for two sets of constituents: the 48,000 voters in Virginia's 46th District, who are being deprived of a representative in Richmond; and 22 voters who failed to fill in all the blanks on their absentee ballots or neglected to return them by the day of the special election.

A decision to count the 22 contested ballots could, in theory, change the outcome of the Jan. 13 election, which was decided by 16 votes. But a legal challenge launched yesterday remains a long shot in a state where recounts rarely change results.

Attorneys for Republican candidate Joe Murray said that eight ballots with incomplete information and 14 that arrived after the election should be counted. Three of the eight were disqualified because voters failed to write "Alexandria" on the oath required when submitting an absentee ballot.

The form says: "Your ballot(s) will not be counted if you fail to complete all blanks."

Murray and his attorneys say the votes should not be rejected. "It becomes a matter of a technicality that we believe does not merit disenfranchising the voters," Murray said.

Herring's attorneys say the law is clear and requires certain information, in part to prevent fraud, noting that Republican opponents often rely on that argument in election fights.

A key sticking point is whether the three-judge recount panel has the authority to reconsider ballots that had been disqualified or to consider mailed ballots that arrived too late. Virginia law says that a recount "shall not take into account . . . any absentee ballots or provisional ballots sought to be cast but ruled invalid and not cast in the election."

"The statute doesn't allow you to count them," said Jack Young, an attorney for Virginia Democrats, who aided Al Gore in the recount after the 2000 presidential election. Jason Torchinsky, Murray's attorney, said in a legal filing that "just because they were not counted . . . does not mean they were not 'cast in the election.' "

In Richmond, House Republicans said they won't seat Herring until the recount is finished.