Home 2017 Races Audio: Shelly Simonds, Attorneys for Va. House Dems Discuss Legal Challenge in...

Audio: Shelly Simonds, Attorneys for Va. House Dems Discuss Legal Challenge in HD-94 [UPDATE: Drawing Postponed]

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There’s an interesting new legal development this afternoon (see audio and partial transcript below) in the ongoing saga over the election in Virginia HD-94, which Democrat Shelly Simonds led by one vote after the recount was concluded, but then changed to a tie after the three-judge panel overseeing the recount decided to accept a ballot for Republican David Yancey that had NOT been counted for him in the recount. Now, we’ll have to see what the court decides, and also what the State Board of Elections opts to do regarding the tiebreaker (pulling a film canister with a candidate’s name inside out of a glass bowl – seriously!) scheduled for tomorrow at 11 am. Never a dull moment here in Virginia, eh?

Shelly Simonds: “This is such an important issue for the state of Virginia. I stand by the results of the recount on Tuesday. I believe it was a fair process guided by rules. It was a
citizen led process conducted by local people with years of elections experience and it was a transparent process conducted in public view, but my opponent didn’t like the outcome so he made an end run around the clear rule of the recount and that was a violation of Virginia law, it was a violation of the terms of the court order that we had almost all agreed to and it was contrary to State Board of Elections guidance. So at the end of the day this really is about the integrity of elections in Virginia and one of the interesting things in the motion that we have filed today is that really the court should not have reviewed the ballot in question. This really is a key principle guiding recounts, because without it recounts would become a never-ending spiral of courtroom challenges.”

Ezra Reese of Perkins Coie: Filing a motion of reconsideration…more formal brief with the court…three arguments…”One that the court made a mistake to consider the letter in the first place. Second that the court made a mistake in opening that box and counting a ballot for the third time. And third that once they decided to do so they made the wrong decision as of the disposition of that ballot, especially with regard to the State Board of Elections and especially now that we know the State Board of Elections indicated that there actually isn’t any guidance in their own guidance, in their own handouts, that indicates that ballot should have been counted…This wasn’t just a violation of the statute and the guidance, it was also a very clear violation of the court’s own order. And what is odd about that is it’s particularly in violation of the reliance on the State Board of Elections guidance and on the principle that the recounts only recount ballots in precincts once.”

 

    • Dave Webster

      Please post the motion for reconsideration brief

  • old_redneck

    Something is very wrong here. The ballot in question SHOULD NOT HAVE BEEN COUNTED, at least in the HOD race that is now being questioned.

    I’m the secretary of my county’s electoral board. We use paper ballots that are read by a digital scanner. Three years ago we spent $100,000 to replace our old optical scanners with digital scanners.

    Look at the ballot in question. Note the ballot clearly says VOTE FOR ONE in the HOD election. However, the voter marked two candidates — that’s an “overvote.”

    Our old optical scanners and our new digital scanners would have rejected that ballot. The new scanner has a screen that will display a warning — “There may be a problem with your ballot. Two candidates are marked for XXXXX when only one mark is allowed. Do you want to CAST THE BALLOT AS IS, or, RETRIEVE THE BALLOT AND OBTAIN A NEW BALLOT? If you cast the ballot as is, this race will not be counted.”

    I don’t understand how that ballot even made it into the ballot box — it has too many choices marked as well as having stray marks on the ballot. The voter should have given a new ballot and the wrongly-marked ballot should have been marked VOID by the precinct chief and placed in the envelope for spoiled and voided ballots.

    Code of Virginia, 24.2-663 states that if a ballot is marked with too many choices for any office, that ballot is not counted for that office — that is — in the HOD race, there were three candidates, VOTE FOR ONE. On the ballot in question, clearly votes were cast for two candidates. That ballot should have been voided and the votes cast for the HOD race should not have been counted.

    § 24.2-663. When ballot void.

    If a printed ballot is found to have been voted for a greater number of
    names for any one office than the number of persons required to fill the
    office, or if the title of the office is erased, the ballot shall be
    considered void as to all the names designated to fill such office, but
    no further, and the ballot shall be counted for the other offices on the
    ballot. In the case of a ballot scanner machine, an election official
    is authorized to cause the ballot scanner to receive the ballot and
    count it in accordance with this section. No ballot shall be void for
    having been voted for fewer names than authorized.

    . . .

    https://law.lis.virginia.gov/vacode/title24.2/chapter6/section24.2-663/

    • Dave Webster

      There is a problem with your argument. The code section you cited does not prohibit the three judge panel from discerning the voter’s intent. If it were a simple matter of both ovals being filled in then it would be an over vote but there was an additional clarifying
      mark which struck out Simonds’ name.

      • John Farrell

        The Code section permits only one re-determination of each precinct during a recount.

        The Statement of Result for the precinct was completed by the two recount officials (one named by each candidates); signed by them and subsequently signed by the recount coordinators on Tuesday; meaning the recount was complete as to that precinct. The ballot in question was not challenged during the recount.

        Thus, the recount court was without authority to examine the ballot under the statute on Wednesday.

        Further, that stray, glancing line cannot be described as a obliterating mark under the SBE guidance document.

        If every recount court is free to ignore the plain language of the statute, then recounts courts will no limits on the actions they can take to overrule the choices of the voters.

    • Kenneth Ferland

      I wonder if this voter did in fact get a second ballot, filled it out correctly and voted it, and what we have here is a failure to void a ballot by the poll worker which lead to the ballot being erroneously swept up into the count later?

      Also given how distinctive the ballots marks are I would not be surprised if the voter in question is able to recognize it and may come forward some day?

  • old_redneck

    I’m the electoral board secretary in a poor, isolated Virginia county. The scanners that count our ballots do exactly what you propose — the scanner rejects an OVERVOTE and gives the voter a choice:
    1. Get a new ballot and mark it correctly, or,
    2. Cast as is in which case the overvoted race will not be counted.

    What you propose is what the Code of Virginia directs:

    Code of Virginia § 24.2-663. When ballot void.

    If a printed ballot is found to have been voted for a greater number of
    names for any one office than the number of persons required to fill the
    office, or if the title of the office is erased, the ballot shall be
    considered void as to all the names designated to fill such office, but
    no further, and the ballot shall be counted for the other offices on the
    ballot. In the case of a ballot scanner machine, an election official
    is authorized to cause the ballot scanner to receive the ballot and
    count it in accordance with this section. No ballot shall be void for
    having been voted for fewer names than authorized.

    https://law.lis.virginia.gov/vacode/title24.2/chapter6/section24.2-663/

    Someone at the State needs to tighten up on the local Registrar and Electoral Board — deliver an ass-chewing then either train them or replace them. Allowing that ballot to be considered is the result of incompetence, not malfeasance — but it reflects on all of us.

    • runnadaroad

      The local Electoral Board followed the law exactly as you suggested old redneck, which is why they submitted the recount for certification with Simonds winning by one vote. It was the ‘three judge panel” who overturned the local Electoral Board’s determination in violation of the law and call the election a tie by reviewing that ballot and deciding it was a vote for the incumbent rather than a void ballot. So what you suggest legally is correct, but it’s the ‘three judge panel’ rather than the local electoral board who made the error.

      • Exactly; the three-GOP-judge panel massively screwed up.

  • John Farrell

    Most optical scan machines already do this but the voter can override the machine and cast the ballot anyway.

  • woodrowfan

    what Old_Redneck said. I’m a precinct chief in my Northern Va precinct. The ballot in question SHOULD have been kicked back by the scanner and the voter offered a new ballot. It happens multiple times every election. You write VOID all over the old ballot and give them a new one…

  • Glen Bayless

    I am pleased to hear that “over” ballots are supposed to be immediately kicked bac. This makes this whole issue even more troubling however. I am very interested in what next court rules.