Photos, Video, Background Legal Information: Rally for Electoral Justice in Alexandria

See below for video and other materials from today’s Rally for Electoral Justice in Alexandria, Virginia. Note that the Alexandria event was one of three rallies held today in Virginia – in Richmond, Fredericksburg and Alexandria – “in response to irregularities in recent House of Delegates Elections.” I wanted to get this post up quickly, so I’ll have more to say shortly, but for now, check out the videos of:

1. Alexandria Council Member John Chapman: “[candidates]  want to know that you either win or lose with integrity…and with both of these cases, the folks running on either side cannot say that their race is not somehow marred with the process”;
2. Arlington County Board member Katie Cristol “Democrats win when it’s a fair fight…and I will tell you what is not a fair fight…for the loser of a recount to be able to sift through discarded ballots…for voters who come out…to make their voices heard and are misclassified in the wrong district, so that the person they’re voting for isn’t the person to represent them; that’s not a fair fight either”;
3. Del. Alfonso Lopez: “the process has to be fair…we can’t 11th hour 59th minute come back with a new piece of information and not allow the other side to have equal time…if people are given the wrong ballot to the point where the victory is less than 80 votes and over 140 were given the wrong ballot, the only sensible move is a new election”; and
4. 2017 Democratic LG candidate Gene Rossi (“I remember when Al Gore conceded, that still hurts me, he won by 600,000 votes…Joshua [Cole] you’re going to win, and here’s why…I had about 15 trials in front of Judge T.S. Ellis III, who is going to be the judge next Friday [in Alexandria]…the Democratic Party of Virginia could not have been entitled to a greater judge than T.S. Ellis III…he always [tries] to be fair and just…If [Shelly Simonds] doesn’t prevail, and she should, I ask you to do this; make two copies of this ballot, carry one of them in your pocket or your purse at all times…and in the election [in November 2018 and in November 2019 and in November 2020], I want you to think of this ballot every time you make a phone call…knock on a door…because this thing, this ballot – I don’t even want to call it a ballot that’s too kind – this piece of paper inspires me, because it shows the importance of one person one vote”)

Also see below or the long presentation by Del. Mark Levine. I’ll talk about that one in more detail above the video of his presentation, as it’s basically a highly detailed legal brief that probably shouldn’t be briefly summarized…

Now, here are some key points from Del. Mark Levine’s presentation, which was long and detailed, kind of like a legal case by a lawyer in court. Whether or not you ultimately agree with Del. Levine’s conclusions, I think you’ll certainly agree that this is extremely well researched.

First, Del. Levine says that he was there today #1 as an American, not as a partisan Democrat, and that “before I advocate for specific laws I believe in the rule of law, because if we don’t live by the rule of law we have nothing.”

Second, Levine says that he’s been looking at the law in these cases, has “read all the briefs,” and wants to go through this systematically.

Third, Levine focuses on HD-28, where he said essentially that we had a replay of “Jim Crow.” In this case, Levine argues that “86 people walked into their polling place in Fredericksburg, Virginia and said I’m duly registered to vote, I’m ready to vote…and they were turned away — ‘you will not be allowed to vote!’ But the voter said ‘but I’m registered, here’s my registration — “you will not be allowed to vote!’ And they said ok, then give me a provisional ballot — ‘no, we won’t give you a provision ballot’…and the Registrar said ‘no, get out!'”  Levine adds that one voter pointed to the map hanging on the wall and said that “I live here,” so “the elections official looked up at the map, they looked at her, and they tore down the map…this is all sworn testimony…they were afraid that other voters would find out that they were legally allowed to vote…This is not some garden variety election irregularity…and it gets worse, because not only were 86 people turned away at the polls but  there were 61 illegal ballot stuffed in that ballot box — 61 people who have no right to vote…having their votes in there…[thus] the number that has been certified is false…There are 147 wrong ballots…The only remedy…we need to have a fair election…I’ve heard good things about this judge…I want you to know the law, because I don’t want you to be…mistaken about what happened in Fredericksburg.”

Fourth, Del. Levine turns to HD-94, quoting from the text of Virginia Code 24.2-802d (“Procedure for Recount”). Levine emphasizes that “there shall be only one redetermination of the vote in each precinct”; that there are very specific rules for what has to be done in a recount, and it’s not ambiguous at all. Specifically, Levine argues, it is crystal clear in the language of the Code that the recount officials “SHALL submit the ballots…as to the validity of which questions exist, to the court,” also that “at the conclusion of the recount of ALL precincts, after allowing the parties to inspect THE QUESTIONED ballots…the court shall rule on the validity of all QUESTIONED ballots.” The problem, Del. Levine argues, is that there was not a single ballot questioned by any Republican or any Democrat on the day of the recount. And then, Del. Levine says, “apparently Del. David Yancey’s attorney talked to election observers, and the next morning came up with a new challenge to the Warwick precinct.” In Del. Levine’s view, the court “has NO JURISDICTION to rule on ballots that haven’t been questioned,” and again, no ballots were questioned on the day of the recount. As Del. Levine explains, the Code didn’t have to be written this way, but it intentionally was, and for good reasons (e.g., it’s “really hard to cheat [precinct by precinct]”). You’re also “not allowed to open the sealed box again,” in Del. Levine’s reading of the law. And “a court that makes a ruling outside its jurisdiction – this is basic black letter – law has no power at all…one of the first things you learn in law school is if a court has no jurisdiction, its rulings are meaningless, they are empty, they have no power whatsoever.” Del. Levine concludes: “The law is clear; it may have been only one vote, but Shelly Simonds won the election in House District 94.”

P.S. See below for more materials relevant to Del. Levine’s presentation.

a) Del. Levine handed out the following information to the people in attendance.

FACTS ABOUT HOUSE DISTRICT 28

61 ILLEGAL BALLOTS STUFFED IN BALLOT BOX

+  86 PEOPLE FORCIBLY DENIED THE RIGHT TO VOTE

= 147 INACCURATE BALLOTS

The number of Fake Ballots is more than TWICE the margin of “Victory” in the Fake Count that all parties agree is INACCURATE.

• When duly registered voters who did nothing wrong, showed up on Election Day to vote for Josh Cole, they were told they would not be allowed to vote.

• When voters asked for a provisional ballot (as required by Virginia and US law), they were refused.

• When a voter complained about this shortly after 9 am, the Election Officials did nothing to fix the problem and help other voters who would be disenfranchised later in the day.

• When a voter pointed to a map at the voting location to prove they were voting in the proper district, the Election Officials threw away the map, because, they said, they didn’t want other legal voters to find out they would also be denied the right to vote. 

• Election Officials hoped the Republican-controlled House of Delegates would decide this race. THEY DID NOT WANT TO LET VOTERS CHOOSE THEIR OWN DELEGATE.

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Code of Virginia (emphasis added)

Table of Contents » Title 24.2. Elections » Chapter 8. Recounts and Contested Elections

• 24.2-802. (Effective until July 1, 2020) Procedure for recount.

1. The court (i) shall supervise the recount and (ii) may require delivery of any or all pollbooks used and any or all ballots cast at the election, or may assume supervision thereof through the recount coordinators and officials.

The redetermination of the vote in a recount shall be conducted as follows:

1. For paper ballots, the recount officials shall hand count the paper ballots using the standards promulgated by the State Board pursuant to subsection A.
2. For direct recording electronic machines (DREs), the 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.
3. For ballot scanner machines, the recount officials shall rerun all the machine-readable ballots through a scanner programmed to count only the votes for the office or issue in question in the recount and to set aside all ballots containing write-in votes, overvotes, and undervotes. The ballots that are set aside, any ballots not accepted by the scanner, and any ballots for which a scanner could not be programmed to meet the programming requirements of this subdivision, shall be hand counted using the standards promulgated by the State Board pursuant to subsection A. If the total number of machine-readable ballots reported as counted by the scanner plus the total number of ballots set aside by the scanner do not equal the total number of ballots rerun through the scanner, then all ballots cast on ballot scanner machines for that precinct shall be set aside to be counted by hand using the standards promulgated by the State Board pursuant to subsection A. Prior to running the machine-readable ballots through the ballot scanner machine, the recount officials shall ensure that logic and accuracy tests have been successfully performed on each scanner after the scanner has been programmed. The result calculated for ballots accepted by the ballot scanner machine during the recount shall be considered the correct determination for those machine-readable ballots unless the court finds sufficient cause to rule otherwise.

Code of Virginia (emphasis added)

Table of Contents » Title 24.2. Elections » Chapter 8. Recounts and Contested Elections

• 24.2-802. (Effective until July 1, 2020) Procedure for recount.
  (continued from page 1)

There shall be only one redetermination of the vote in each precinct.

At the conclusion of the recount of each precinct, the recount officials shall write down the number of valid ballots cast, this number being obtained from the ballots cast in the precinct, or from the ballots cast as shown on the statement of results if the ballots cannot be found, for each of the two candidates or for and against the question. They shall submit the ballots or the statement of results used, as to the validity of which questions exist, to the court. The written statement of any one recount official challenging a ballot shall be sufficient to require its submission to the court. If, on all direct recording electronic machines, the number of persons voting in the election, or the number of votes cast for the office or on the question, totals more than the number of names on the pollbooks of persons voting on the voting machines, the figures recorded by the machines shall be accepted as correct.

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. After determining all matters pertaining to the recount and redetermination of the vote as raised by the parties, the court shall certify to the State Board and the electoral board or boards (a) the vote for each party to the recount and declare the person who received the higher number of votes to be nominated or elected, as appropriate, or (b) the votes for and against the question and declare the outcome of the referendum. The Department shall post on the Internet any and all changes made during the recount to the results as previously certified by it pursuant to § 24.2-679.
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