The real problem, IMHO, is that Wednesday’s hearing was conducted in a manner that lopsidedly favored the Republicans.
Per post 257, above, the court was to rule on the validity of all questioned ballots and votes - of which there were none - and then certify the results of the election based on the count after its ruling.
When Simonds’ team showed up on Wednesday morning, they weren’t prepared for anything except a straightforward rubber-stamping of the results of Tuesday’s recount. Since there were not questioned ballots for the court to rule on, there were no unresolved issues.
When the court allowed Yancey’s (the Republican’s) team to submit this letter explaining why one of his officials didn’t question a ballot, but realized later that he should have, and reopened the issue of that one ballot:
It created a situation where Yancey’s team was prepared to argue that the ballot should be counted for Yancey, but where Simonds’ team was not prepared to argue to the contrary. Only one side, Yancey’s team, came in with reason to expect the possibility of that argument.
It created a situation where only Yancey’s team had the opportunity to reopen the discussion over ballots that it felt deserved another look. Were there ballots that Simonds’ team might have brought up as well? They didn’t expect that there would be either the need or the possibility, until the rules were changed on them. At a minimum, the court should have given them a day to ask the court to reconsider ballots of their choosing.
Here you have Sec.24.2-802, where parts A through G of that section describe in detail the procedure that the court will adhere to as it supervises and certifies the recount. Then part H says, “The recount proceeding shall be final and not subject to appeal.”
If we interpret part H to mean that the court can make up its own procedures, willy-nilly, and the results aren’t subject to appeal, then Parts A through G are meaningless. As Captain Jack Sparrow might say, they’re really just guidelines. But then the legislature didn’t mean what it said.
So is there a way to interpret Part H so that Parts A through G mean what they say, but Part H does too? Well sure, if it’s interpreted to mean that when the court follows the procedures laid out in Parts A through G, then the result can’t be appealed. But if the court departs from the procedures in Parts A through G, then those departures and their fruit can be appealed.
IANAL, of course, so I’d be interested in the SDMB legal eagles’ take on that logic. Needless to say, if I’ve made a hash of Ravenman’s logic, the fault is mine, not his.
If I were told that the ballot had to be counted, and I had to decide which candidate was chosen, I’d agree. But I think that “correction” is so minimal that it could be an accident, and my inclination would be to discard the ballot. Had the guy crossed it out (with an “X”) or otherwise clearly indicated his choice, I’d agree to count it.
The examples they give with this section, however, are models of clarity compared to the ballot in question.
I’m with John Mace on this one: if I absolutely had to count this ballot for one candidate or the other, I’d say Yancey. But I think it’s a real stretch to try to divine the voter’s intent from that one additional mark.
Update on VA-94: the State Board of Elections (what, not the Commonwealth Board of Elections?) has postponed tomorrow’s drawing to determine the winner of that race, pending the outcome of Simonds’ petition for reconsideration of its decision last week.
She basically had to do this. There was no way to really be sure that this was the disputed ballot. This could very well have been a ballot that was already counted in Yancey’s favor. This recount is unlikely to result in a win for Yancey but could result in a win for Simmonds.
A petition for reconsideration isn’t an appeal. The latter is a petition to a higher court; a petition for reconsideration is to the same court.
I’m still dubious about the decision being unappealable in cases where the court failed to follow the procedure outlined in the law. The court isn’t above the law.
Will Yancey’ s tactic work? I doubt it. The SBE will wait on the response of the court to the petition for reconsideration. If the court on reconsideration roles for Simonds, no drawing is needed. If it reaffirms its original ruling, the SBE will hold a drawing ASAP. But judges don’t like it when other actors try to pressure them. If anything, it’ll backfire and leave them less well disposed towards Yancey.
Not every judicial decision has to be appealable. This is not to say that there are no judicial remedies possible. For example, it might be possible to file a petition for a writ of prohibition, arguing constitutional issues.
