[EL] Election Contest Procedures in Virginia

[Green, Rebecca]

Another quirk of VA law: state statute requires the formation of a special election court to preside over recounts:

The Chief Judge of the Circuit Court where the recount petition was filed and two other judges appointed by the Chief Justice of Supreme Court of Virginia make up the recount court. The recount court, outlines all procedures and the manner in which the recount will be conducted for each type of voting equipment used (pursuant to § 24.2-802<http://leg1.state.va.us/cgi-bin/legp504.exe?000+cod+24.2-802> of the Code of Virginia). The court appoints recount officials from among the officers of election who served during the election, who are appointed to represent the respective parties to the recount. In setting the procedures for the recount, the court will also decide if the actual recounting of votes cast will take place in the various localities or in a central location. After all of the votes cast are recounted, the court will certify the candidate with the most votes as the winner.

(From State Board of Elections Recount Guide, available here<http://www.sbe.virginia.gov/cms/misc/election_laws.html>.)

Rebecca

________________________________
Rebecca Green
Professor of Practice
Co-Director, Election Law Program
William & Mary Law School
757-221-3851

From: Josh Douglas <joshuadouglas at uky.edu<mailto:joshuadouglas at uky.edu>>
Date: Wednesday, November 6, 2013 1:02 PM
To: "law-election at uci.edu<mailto:law-election at uci.edu>" <law-election at uci.edu<mailto:law-election at uci.edu>>
Subject: [EL] Election Contest Procedures in Virginia

It appears that yesterday's Attorney General's election is the only one that might be within the "margin of litigation," with the candidates separated by a mere 476 votes<http://www.washingtonpost.com/local/virginia-politics/obenshain-herring-in-dead-heat-in-virginia-attorney-generals-race-recount-expected/2013/11/06/f3d49976-46b0-11e3-b6f8-3782ff6cb769_story.html> out of 2.2 million cast.  Both sides indicate that they will ask for a recount.  After that administrative process is complete, it is plausible that the losing side will initiate an election contest.  But this is one example in which it won't necessarily be the courts, but the legislature, who will decide the contest.

As I explain in my article<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2016378> on this topic, in Virginia a joint session of the legislature decides election contests for statewide offices such as Attorney General, with the Speaker of the House of Delegates presiding.  Although I have not reviewed yesterday's election results for Virginia legislature, the current General Assembly is controlled by Republicans--67-31 (with one independent) in the House of Delegates and 20-20 in the Senate.  Thus, particularly if the Republican candidate, Obenshain, is down after the recount, we could see him initiate an election contest in the General Assembly.

Josh

--
Joshua A. Douglas
Assistant Professor of Law
University of Kentucky College of Law
620 S. Limestone
Lexington, KY 40506
(859) 257-4935<tel:%28859%29%20257-4935>
joshuadouglas at uky.edu<mailto:joshuadouglas at uky.edu>

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