Dan Tokaji's Blog
Professor Dan Tokaji
Election reform, the Voting Rights Act, the Help America Vote Act, and related topics -- with special attention to the voting rights of people of color, non-English proficient citizens, and people with disabilities

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Equal Vote
Tuesday, November 7
 
Coming Down to Virginia?
It's now looking as though control of the U.S. Senate may hinge on the outcome in the Commonwealth of Virginia, where Democratic challenger Jim Webb currently holds a narrow lead over the Republican incumbent, Senator George Allen. Reuters has this report and the AP this one. Rick Hasen has written this post laying out a possible recount scenario in Virginia.

Virginia's recount statute provides:
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.... Va. Code 24.2-800.
It appears that the margin will be comfortably within 1%, putting aside provisional ballots for the moment. A recount could well happen if the margin ends up being less than a few thousand votes. But as set forth in this table, most Virginia jurisdictions use some sort of direct record electronic (DRE) voting technology. There's no "voter verified paper audit trail" requirement in Virginia, as noted by electionline.org. The recount statute provides that, for DRE voting systems:
[T]he 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. Va. Code 24.2-802.
This makes it unlikely, though not impossible, that the recount will result in a substantial shift in votes.

Now the wild card: I can't tell as of this writing whether there are a sizeable number of provisional ballots in Virginia. Under Virginia law, the process for determining whether provisional ballots should be counted could go on for a week:
The electoral board shall meet on the day following the election and determine whether each person having submitted such a provisional vote was entitled to do so as a qualified voter in the precinct in which he offered the provisional vote. If the board is unable to determine the validity of all the provisional ballots offered in the election ...., the meeting shall stand adjourned from day to day, not to exceed seven calendar days from the date of the election, until the board has determined the validity of all provisional ballots offered in the election. Va. Code 24.2-643
Even though provisional ballots are generally assumed to tilt toward Democratic candidates ... you never know, especially if it turns out that there were an unusual number of registration issues in Republican-leaning districts.

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Moritz College of Law The Ohio State University