The outcome of yesterday’s recount was supposed to be certified this morning by a 3-judge panel in Newport News. The GOP lawyers are arguing that a bad decision was made yesterday about one ballot that could apparently be interpreted either as a vote for the GOP candidate or a no vote, but was counted as the latter. They want that switched, which would make it a tie vote.
Reema Amin, the Newport News Daily Press reporter covering the recount, has the latest details in her Twitter feed.
One problem with this debated ballot is that they didn’t segregate it at the time. They’ve opened the box, found what may or may not be the ballot in question. R lawyers are saying it must be the right one, D lawyers are saying how the hell can you be sure?
Does the law allow for regret in an election official? :dubious:
I mean, has this ever been a successful tactic utilized in an election proceeding before?
Sure seems to me to be a long shot. But Amin hasn’t tweeted in over 2 hours, so the judges must be considering it.
For those who don’t want to dig it out of the Twitter thread:
There’s this ballot that could either be interpreted as a ‘no vote’ in this race, or could be interpreted as a vote for the Republican. It was counted as a ‘no vote.’
When the recount was done yesterday, the recount official appointed by the Republican candidate (each party gets to appoint officials) signed off on that decision.
This morning, he gave a letter to the court saying he made the wrong decision - he was new to this, he was confused, so he didn’t contest his Dem colleague’s opinion, and yesterday evening he realized he’d made the wrong call.
There’s a debate over whether this guy’s letter can even be considered.
If they decide it can be considered, they’ve got to decide if he’s got a good justification for reopening the recount with respect to this one ballot.
Even if it is considered and they decide the issue should be reopened, there’s still the question of whether they can be sure they’re reopening the decision on the right ballot, since it wasn’t segregated.
And assuming they decide they’ve got the right ballot, they still could go either way on whether it’s a ‘no vote’ or whether it’s a vote for the Republican.
And if it’s ruled a vote for the Republican, the race is a tie, and they’d have to resolve it by whatever procedures Virginia has for resolving a tie vote. My Google-fu is weak today; I haven’t been able to figure out what those are.
But that’s 5 steps, all of which have to go in the Republican’s favor, for him to hold his seat. Any one of them goes against him, and the Dem wins.
Right now, I’m very glad I chipped in $100 to the VA Dems’ recount fund.
They ruled that it was a Republican vote. It’s now a tie and they’ll draw lots. The loser can request a recount.
And there’s still the possibility of appealing the decision, isn’t there?
Here’s the cite on the drawing lots part. I bet that section of the Code of Virginia gets more hits today than it’s gotten in the past decade. 
Actually, if the loser is the Republican then he will jump up and down, start crying, whining that it’s just not fair… and the comission will say “2 out of 3?” 
Still not seeing anything on when they draw lots for the seat.
Ben Tribbett, aka @notlarrysabato, has also had some good commentary on the recount.
He notes:
Before everyone loses their mind, remember Shelly Simonds got a vote yesterday where both bubbles were filled in- but hers was darker. This is what happens in recounts.
In case you are wondering why double bubbles filled in counts for one- when one bubble is lighter it can be interpreted as the voter trying to erase.
Based on that, and the description of the disputed ballot (no pix available, AFAIK), I’d say the disputed ballot had at least as good a case for being a vote as that Simonds ballot did.
So this seat, and control of the House of Delegates with it, will be decided by the equivalent of a coin toss. Dayum. More than 50 years of being a political junkie, and still stuff happens that you’ve never seen before.
Politics are local, though. I’m not necessarily defending Northam because I don’t know enough about the Virginia economy or political scene to know what’s what. I do know that Virginia’s not as progressive as, say, Massachusetts or even Maryland for that matter. Democrats have to compete with Republicans for major races, and whether we like it or not, it means winning some center-line voters by convincing them that they’re not Bolsheviks. In economic downturns it’s easier for Democrats to be more audacious in these swing states, but not quite as easy when there’s nearly full employment (“full” according to the bureaucrats anyway)
Here’s a pic of the ballot in question, FWIW.
In all fairness I think I would be inclined to consider that a Republican vote as well.
Yep, me too.
For all those people who think that one vote can’t make a different, take note that basically control of the Virginia State Assembly is now being decided by somebody picking a name from a hat. Anybody in that district who didn’t vote-this is all your fault!
I agree with the other posters that the Republican candidate was almost certainly the final intention.
But it does illustrate how subjective the job can be. A big piece of evidence that I used in my “armchair post to a message board” “trial” was the Republican slate chosen elsewhere on the ballot. Are the adjudicators supposed to use that sort of thing as evidence or not?
The main difference between the D and R candidates for the house is that the D candidate has a line through it as if it was crossed out. But the R governor is crossed out too. Did that count as a vote? For consistency with the “crossed out” house candidate you could argue that it shouldn’t.
But I suspect the true intention matches the inconsistent interpretation. The voter isn’t very good at following instructions and voted for the governor with an ‘X’, realized their mistake and started filling in the boxes instead. Filling in the D house candidate was a mistake that was “corrected” with the line.
I’m curious if anyone here has had any experience with this process. Are partisan adjudicators typically fairly reasonable? Or blatantly self serving (“that spec of dust in the circle is clearly a vote!”, “I looked at it under an electron microscope and they missed filling in a square micrometer, not a vote!”)?
Here’s the section of the Code of Virginia governing how recounts are conducted.
If I were a lawyer for the Virginia Democratic Party, I’d be challenging the decision, because there’s a good argument that the stated procedures weren’t followed. While the law states that there shall only be one redetermination of the vote in each precinct, I’d argue that there were two - one yesterday, and one today. The judges rule on the ballots questioned by one side or the other during the recount. This ballot wasn’t questioned during the recount, but only the next day.
“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.” The ballot in question wasn’t one of them: any questioned ballots are to be submitted “[a]t the conclusion of the recount of each precinct.” It wasn’t; it hadn’t been questioned during the recount of that precinct.
Despite the law saying “[t]he recount proceeding shall be final and not subject to appeal,” I’d argue that the judges exceeded their authority here by considering ballots not questioned during the recount, and the actions outside their authority were therefore outside the recount proceeding as properly conducted, therefore subject to legal challenge.
Don’t know if that would fly, but if such deviations from the procedure set out aren’t subject to legal challenge, what’s the point of the procedure being in the law? It’s effectively outside the law, which makes no sense at all. Why would the legislators write a whole bunch of procedure, and stick a clause at the end effectively letting the judges follow or ignore it as they choose? Very strange.
Ooh, that’s a tough one. Unless there are rules that cover this, I’d be inclined to not count the vote for that position on that ballot. But I’d also make sure that, in the future, the ballot had instructions on what to do if you make a mistake.
By “disputed ballot” you mean the ballot that was retrieved by a Republican from a box with lots of unsegregated ballots because it might have been the ballot the R judge had regrets about? That is, that ballot might already have been counted for the R to begin with?
I haven’t peeked ahead to see who won the coin toss. Any bets that if the D wins the R’s will fish through and find another “disputed ballot”?
That’s why elections that close shouldn’t be decided by recounts. There is no way to recount that is either a) accurate, or b) fair, or c) perceived as fair.
Rather than recounts, they should just do the coin flip or have a “challenging party wins” rule.