A three-judge state court tonight ordered a recount of the Virginia U.S. Senate election that will be shrouded in secrecy and far more costly than lawyers for Democratic candidate Andrew P. Miller said it should be.
By ordering fees for 1,360 recount workers that apparently could raise the cost of the new tally to about $80,000, the court cast doubt on whether a recount will be held at all.
Miller must pay for the new tabulation if he remains the loser to Republican John W. Warner, and Miller has said he will pass up his right to a new count if he cannot raise funds to pay for it.
Warner won the Nov. 7 election by only 4.721 votes of more than 1.22 million cast, a margin of less than 0.4 percent. A candidate losing by less than 1 percent has an automatic right to a recount in Virginia.
Miller's lawyer Walter A. Marston said after the court's decision that he does not know whether Miller will follow through on his petition for a new tally. The judge ordered Miller to post an $80,000 bond by Monday morning to guarantee payment of the costs.
If the recount takes place, it would begin Thursday in court-imposed secrecy. Despite a constitutional provision barring secret wote counts, the court order prohibits recount workers from making public precinct or city and county totals.
Speaking for the three-judge court, Richmond Circuit Court Judge James B. Williamson said no one may divulge recount results until the judges certify the winner to the state Board of Elections. Campaign and election officials attending the hearing said the process could take a week to complete.
Normally, election officers immediately make precinct results public, and such results become the basis for unofficial returns on election day.
Both the cost and secrecy requirements imposed by the court were surprising because they went beyond anything sought or recommended by lawyers and election officials who appeared in the day-long hearing.
Marston proposed that the 1,224 recount officers be paid $20 a day, and Board of Elections Secretary Joan S. Mahan recommended that the 136 local election secretaries be paid nothing additional for helping with the recount. Warner lawyer Robert D. Mcllwaine, pointing out that his client would have to bear no costs, made no recommendations about fees.
Without explanation, the court set a $30 per day fee election officers and a $50 fee for local secretaries. This added $19,040 to the costs proposed by Miller.
In addition to the fee paid for one day of recounting paper ballots and redetermining voting machine totals in cities and counties, election officers will be paid 15 cents a mile to drive to points where hallots and machines are stored. Other costs include court fees, recount forms, delivery of documents from cities and counties to the court in Richmond and fees for court-appointed tabulators of local results.
The cost to Miller could be significantly reduced if Democratic election officers appointed by the court waive their fee and mileage allowance. Warner and Miller are permitted under the law to select half of the election officers who will conduct the recount.
The question of secrecy arose only once during the hearing when McIlwaine argued successfully that each side should be allowed to send a single poll watcher with each recount team. Marston objected on grounds that the poll watchers might create confusion.
Arguing for he right to have observers, McIlwaine, said the "recount process is an integral part of the election process," which "from beginning to end is declared to be an open process."
McIlwaine, a former assistant attorney general and counsel to former Gov. Mills E. Godwin, underscored his state Constitition that prohibits opening ballot boxes or voting machines or counting ballots in secret.
The court granted the Warner request for poll watchers, but without giving a reason imposed its gag order not only on election officers but the poll watchers as well.