Another Herring Victory Party Comes Later This Week

Another Herring Victory Party Comes Later This Week

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Obenshain photo ObenshainatSHD_zps1ce62d10.jpgThe margin might be the closest in US election history and is certainly the closest in modern history. The State Board of Elections certified the results when they convened the fourth Monday in November. The margin is 165 votes out of 2.2 million cast. It’s over this Thursday (or Friday at the latest).

Obenshain, because of the margin, is within his rights to petition for the recount. The Recount Court has been empaneled and convened twice. Motions by both camps have been heard. The court has established procedural orders and a timeline for the recount.

Chesapeake, Fairfax, and Alexandria, because of their size, are going to begin today, a day earlier than the remaining jurisdictions in Virginia. Tomorrow, the remaining jurisdictions will begin and those three will continue as required. The State Board of Elections will convene on Wednesday, December 18, as will the Recount Board (to recertify the local results). All the jurisdictions will recount and then the SBE will recanvass the recounts. If there are any ballots in question from the local recounts, it will be the SBE that adjudicates.  

Anyone expecting fireworks during this procedure will be sorely disappointed. This is a very narrow process. The kinds of games that are available in other states are not in Virginia. Barring malfeasance by election officials, any drama would have to be manufactured. By design, the Virginia process is streamlined. In this case, this is the retabulation of the votes that were cast for Attorney General only on election day. Provisional ballots that were rejected will not be revisited nor will absentee ballots that were not counted. By court order, the election officials may not draw down the number of ballots that were cast (they may not reconcile the numbers; yes that is allowed in very narrow circumstances on election day). Machine errors and voter eligibility are not at issue.  

With rare exception (and none that has been evinced in this election), the recount officials are hard-working election officials. They are not partisans during the execution of their responsibilities. They just want to get it right.

Each and every ballot will not be examined.

    There are three types of ballots in Virginia:

  • Direct Recording Electronic (DRE) – the touch screen machines
  • Optical Scan Ballots
  • Paper ballots

DREs are really easy. The recount officials will examine the machine printouts. They will look at the tapes that are from election night. If the tape is not clear, they can be reprinted (Note: these tapes have already been inspected and none were found to be illegible).

Optical scan ballots will all be re-run through the tabulator. This is a change from the past. The machines are programmed to count only those ballots cast in the election for Attorney General. The machines are also programmed to not count over-votes, under-votes, or write-ins. These are all set aside and hand-counted. There could be instances when the number of ballots tabulated does not match the number of ballots. Reconciling those number differences is not a reason for hand-counting. Only those ballots not counted will be examined.

    Terminology for the purposes of the recount:

  • Over-votes – ballots on which a voter selected more than one candidate
  • Under-votes – ballots on which, apparently, the voter marked no candidate
  • Write-in votes – what they sound like

However, if a machine is not properly setting aside the over, under, and/or write-in votes, and it cannot be fixed, the election officials do have the opportunity to hand-count all the ballots.

Of course, paper ballots are hand counted. Hand counting of paper and uncounted optical scan ballots is conducted in accordance with SBE standards (posted on the SBE website).

Only recount officials can challenge ballots. It only takes one of them.

If it is clear that there is an indication of support, an affirmation of support for only one candidate for Attorney General, then the ballot will be counted for that candidate. That does not include write-in votes for candidates who are on the ballot. Virginia law precludes write-ins for candidates on the ballot.

A lot of voters are not familiar with standardized testing procedures or have other experiences that make them familiar with properly completing a ballot. For that reason ballots get marked in a variety of ways.

If there are identical marks for each candidate, but then there is an additional clarifying mark, that is a positive affirmation, it will count for that candidate.

If only one candidate receives a mark of support in the target area of a candidate, that will count for that candidate (unless the mark is clearly negative or unsupportive). The target area is the area near the oval. The candidate area is the area around a candidate’s name.

You cannot cast a vote in Virginia by negative implication. So scratching out candidates does not mean the remaining candidate received the vote.

The recount only considers votes cast (and counted) in the election. It will neither include ballots not cast in the election by including provisional or absentee ballots that were not counted nor will it exclude ballots that were cast in the election. This goes back to the earlier statement about reconciling numbers by drawing down the number of ballots cast (through a ballot pull). The procedural order from the court makes this clear.

By now you should have a sense that any dramatic change in the outcome of the Attorney General’s race is highly unlikely. The votes cast and counted on election day are the votes that will be considered over the next three days. That is good for Mark Herring. It is also good for the integrity of the process in Virginia which has been under constant attack by Republicans for years now. This is in stark contrast with the position of the Herring camp, and for that matter, Democrats in general. Barring an unexpected reverse, discrediting that process is the only way that Obenshain stands a chance of stealing this election. If that becomes the strategy, we have bigger problems than Mark Obenshain.

  • Glen Tomkins

    First, thanks for an excellent summary of exactly how the recount will work.  If you only looked in the conventional media, you would seek in vain for much factual reportage at all on how the recount works.  Conventional journalists these days seem content with being stenographers, just telling us what both sides are saying.  Thanks for giving us the factual context.

    The limited scope of the issues that can be considered in the recount raises a question.  The recount is only designed to provide a definitive adjudication of some issues that could have changed the outcome.  What recourse does a candidate have if he feels that the issues that the recount doesn’t adjudicate might have cost him the election?  Can the losing candidate contest the election in court, or is his only recourse the legislative contest we’ve been hearing so much about?

    The only other question I have about what you have written is on the statement that dramatic changes in the race are unlikely to come out of the recount, that only the votes cast and counted on e-day will be considered.  It may be true that only votes cast on e-day can be considered, but as you outline, there were undervotes the optical scanners did not count on e-day that will be hand-counted in the recount  for the first time, and there could be plenty enough of them to move the numbers around quite a bit.  Do all the people who tell us that there are 50,000 undervotes yet to be counted have it wrong?

  • http://www.bluevirginia.us lowkell

    On the Herring campaign’s conference call earlier this afternoon, they made a few points:

    *They have observers (700-800 volunteers) throughout Virginia and are tracking the numbers, as precincts are counted, against the certified results.

    *They continue to expect small movement, but certainly nothing that would affect the results of the election.

    *As of the call at 2:30 pm, Herring had picked up 55 votes, Obenshain 35 votes, for a net gain of 20 votes for Herring (making the total margin as +185 for Herring as of 2:30 pm). They expect this trend to continue.

    *The recount seems to be going along relatively smoothly, the challenge level has been “relatively low” (at most 20 challenges as of 2:30 pm).

    *They feel very confident that Herring will be declared the winner for the 3rd time.

    *The recount should finish up Wednesday, then the court will review Wed/Thur/Fri, hopefully wrapping this up by the end of this week.