Bill Text: VA SB444 | 2020 | Regular Session | Prefiled
Bill Title: Election recounts; reorganization of sections, technical amendments.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2020-04-08 - Governor: Acts of Assembly Chapter text (CHAP0886) [SB444 Detail]
Download: Virginia-2020-SB444-Prefiled.html
Be it enacted by the General Assembly of Virginia:
1. That §24.2-800, §§24.2-801, 24.2-801.1, and 24.2-802, as they are currently effective and as they shall become effective, and §24.2-814 of the Code of Virginia are amended and reenacted and that the Code of Virginia is amended by adding in Article 1 of Chapter 8 of Title 24.2 sections numbered 24.2-802.1, 24.2-802.2, and 24.2-802.3 as follows:
§24.2-800. Recounts in all elections.
A. The provisions of this article apply to all elections held in the Commonwealth.
B. 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 as set forth in this article. When there is between any write-in candidate apparently nominated or elected and any candidate apparently defeated, or between any candidate apparently nominated or elected and any write-in candidate apparently defeated, a difference of not more than five 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 as set forth in this article. In an election of electors for the President and Vice President of the United States, the presidential candidate shall represent the vice presidential candidate and slate of electors and be the party to the recount for purposes of this article.
C. When there is between the vote for a question and the vote
against a question a difference of not more than
fifty 50
votes or one percent of the total vote cast for and against the question as
determined by the State Board or the electoral board, whichever is greater, fifty 50
or more voters qualified to vote on the question, by signing and filing their
petition, may appeal from the determination of the State Board or the electoral
board for a recount of the vote as set forth in this article.
D. The State Board
shall promulgate standards and instructions for the conduct of simultaneous
recounts of two or more elections in a single election district.
§24.2-801. (Effective until July 1, 2020) Petition for recount; recount court.
A. The
petition for a recount of an election, other than an election for presidential
electors, shall be filed within 10 days from the day the State Board or the
electoral board certifies the result of the election under §24.2-679 or § 24.2-671, but not
thereafter. The petition shall be filed in the Circuit Court of the City of
Richmond in the case of any statewide office and in the circuit court of the
county or city in which the candidate being challenged resides in the case of
any other office. The petition shall be filed in the Circuit Court of the City
of Richmond in the case of any statewide referendum and in the circuit court of
any county or city comprising a part of the election district in the case of
any other referendum.
B. The petition shall set forth the results certified by the State Board or electoral board and shall request the court to have the ballots in the election recounted or, in the case of direct recording electronic machines, the vote redetermined.
C. In an election for office, a copy of the petition shall be served on the candidate apparently nominated or elected as provided under §8.01-296 and within 10 days after the State Board or electoral board has certified the results of such election. In a referendum, a copy of the petition shall be so served on the governing body or chief executive officer of the jurisdiction in which the election was held.
D. The chief judge of the circuit court in which a petition is filed shall promptly notify the Chief Justice of the Supreme Court of Virginia, who shall designate two other judges to sit with the chief judge, and the court shall be constituted and sit in all respects as a court appointed and sitting under §§ 24.2-805 and 24.2-806.
§24.2-801. (Effective July 1, 2020) Petition for recount; recount court.
A. The
petition for a recount of an election, other than an election for presidential
electors, shall be filed within 10 days from the day the State Board or the
electoral board certifies the result of the election under §24.2-679 or § 24.2-671, but not
thereafter. The petition shall be filed in the Circuit Court of the City of
Richmond in the case of any statewide office and in the circuit court of the
county or city in which the candidate being challenged resides in the case of
any other office. The petition shall be filed in the Circuit Court of the City
of Richmond in the case of any statewide referendum and in the circuit court of
any county or city comprising a part of the election district in the case of
any other referendum.
B. The petition shall set forth the results certified by the State Board or electoral board and shall request the court to have the ballots in the election recounted.
C. In an election for office, a copy of the petition shall be served on the candidate apparently nominated or elected as provided under §8.01-296 and within 10 days after the State Board or electoral board has certified the results of such election. In a referendum, a copy of the petition shall be so served on the governing body or chief executive officer of the jurisdiction in which the election was held.
D. The chief judge of the circuit court in which a petition is filed shall promptly notify the Chief Justice of the Supreme Court of Virginia, who shall designate two other judges to sit with the chief judge, and the court shall be constituted and sit in all respects as a court appointed and sitting under §§ 24.2-805 and 24.2-806.
§24.2-801.1. (Effective until July 1, 2020) Petition for recount of election for presidential electors; recount court.
A. The petition for a recount of an election for presidential electors shall be filed no later than 5:00 p.m. on the second calendar day after the day the State Board certifies the result of the election under §24.2-679, but not thereafter. Presidential candidates who anticipate the possibility of asking for a recount are encouraged to so notify the State Board by letter as soon as possible after election day. The petition shall be filed in the Circuit Court of the City of Richmond. If any presidential candidate is eligible to seek a recount of the results of the election for presidential electors under § 24.2-800 the State Board shall, within 24 hours of the certification of the results, notify the Circuit Court of the City of Richmond and the Supreme Court of Virginia (i) that a recount is possible, (ii) which presidential candidate is eligible to seek a recount, and (iii) of the date the results were certified. The Circuit Court of the City of Richmond shall make arrangements to receive any such filing if the office would normally be closed the entire day, or prior to 5:00 p.m., on the second calendar day after the day the State Board certified the result of the election.
B. The petition shall set forth the results certified by the State Board and shall request the court to have the ballots in the election recounted or, in the case of direct recording electronic machines, the vote redetermined.
C. A copy of the petition shall be served on the presidential candidate whose electors were apparently elected as provided under §8.01-296 and within five calendar days after the State Board has certified the results of such election.
D. As soon as a petition is filed, the chief judge of the Circuit Court shall promptly notify the Chief Justice of the Supreme Court of Virginia, who shall designate two other judges to sit with the chief judge, and the court shall be constituted and sit in all respects as a court appointed and sitting under § 24.2-805.
E. Any recount of an election for presidential electors shall be held promptly and completed, in accordance with the provisions of 3 U.S.C. §5, at least six days before the time fixed for the meeting of the electors.
§24.2-801.1. (Effective July 1, 2020) Petition for recount of election for presidential electors; recount court.
A. The petition for a recount of an election for presidential electors shall be filed no later than 5:00 p.m. on the second calendar day after the day the State Board certifies the result of the election under §24.2-679, but not thereafter. Presidential candidates who anticipate the possibility of asking for a recount are encouraged to so notify the State Board by letter as soon as possible after election day. The petition shall be filed in the Circuit Court of the City of Richmond. If any presidential candidate is eligible to seek a recount of the results of the election for presidential electors under § 24.2-800 the State Board shall, within 24 hours of the certification of the results, notify the Circuit Court of the City of Richmond and the Supreme Court of Virginia (i) that a recount is possible, (ii) which presidential candidate is eligible to seek a recount, and (iii) of the date the results were certified. The Circuit Court of the City of Richmond shall make arrangements to receive any such filing if the office would normally be closed the entire day, or prior to 5:00 p.m., on the second calendar day after the day the State Board certified the result of the election.
B. The petition shall set forth the results certified by the State Board and shall request the court to have the ballots in the election recounted.
C. A copy of the petition shall be served on the presidential candidate whose electors were apparently elected as provided under §8.01-296 and within five calendar days after the State Board has certified the results of such election.
D. As soon as a petition is filed, the chief judge of the Circuit Court shall promptly notify the Chief Justice of the Supreme Court of Virginia, who shall designate two other judges to sit with the chief judge, and the court shall be constituted and sit in all respects as a court appointed and sitting under § 24.2-805.
E. Any recount of an election for presidential electors shall be held promptly and completed, in accordance with the provisions of 3 U.S.C. §5, at least six days before the time fixed for the meeting of the electors.
§24.2-802. (Effective until July 1, 2020) Recount standards.
A. The State Board of Elections shall promulgate standards for
(i) the proper handling and security of voting and counting machines, ballots,
and other materials required for a recount, (ii) accurate
determination counting
of votes based upon objective evidence and taking into account the counting
machine and form of ballots approved for use in the Commonwealth, and (iii) any
other matters that will promote a timely and accurate resolution of the
recount.
B. The State Board shall promulgate additional standards and instructions for the conduct of simultaneous recounts of two or more elections in a single election district.
C. The chief judge of the circuit court or the full recount court may, consistent with State Board of Elections standards, resolve disputes over the application of the standards and direct all other appropriate measures to ensure the proper conduct of the recount.
The recount procedures
to be followed throughout the election district shall be as uniform as
practicable, taking into account the types of ballots and voting and counting
machines in use in the election district.
In preparation for the
recount, the clerks of the circuit courts shall (a) secure all printed ballots
and other election materials in sealed boxes; (b) place all of the sealed boxes
in a vault or room not open to the public or to anyone other than the clerk and
his staff; (c) cause such vault or room to be securely locked except when
access is necessary for the clerk and his staff; and (d) certify that these
security measures have been taken in whatever form is deemed appropriate by the
chief judge.
B. Within
seven calendar days of the filing of the petition for a recount of any election
other than an election for presidential electors, or within five calendar days
of the filing of a petition for a recount of an election for presidential
electors, the chief judge of the circuit court shall call a preliminary hearing
at which (i) motions may be disposed of and (ii) the rules of procedure may be
fixed, both subject to review by the full court. As part of the preliminary
hearing, the chief judge may permit the petitioner and his counsel, together
with each other party and his counsel and at least two members of the electoral
board and the custodians, to examine any direct recording electronic machine of
the type that prints returns when the print-out sheets are not clearly legible.
The petitioner and his counsel and each other party and their counsel under
supervision of the electoral board and its agents shall also have access to
pollbooks and other materials used in the election for examination purposes,
provided that individual ballots cast in the election shall not be examined at
the preliminary hearing. The chief judge during the preliminary hearing shall
review all security measures taken for all ballots and voting and counting
machines and direct, as he deems necessary, all appropriate measures to ensure
proper security to conduct the recount.
The chief judge,
subject to review by the full court, may set the place or places for the
recount and may order the delivery of election materials to a central location
and the transportation of voting and counting machines to a central location in
each county or city under appropriate safeguards.
After the full court
is appointed under §24.2-801 or 24.2-801.1, it shall call a hearing at which
all motions shall be disposed of and the rules of procedure shall be fixed
finally, and it shall issue a written order setting out such rules of
procedure. The court shall call for the advice and cooperation of the
Department, the State Board, or any local electoral board, as appropriate, and
such boards or agency shall have the duty and authority to assist the court.
The court shall fix procedures that shall provide for the accurate
determination of votes in the election.
The determination of
the votes in a recount shall be based on votes cast in the election and shall
not take into account (a) any
absentee ballots or provisional ballots sought to be cast but ruled invalid and
not cast in the election, (b)
ballots cast only for administrative or test purposes and voided by the
officers of election, or (c) ballots
spoiled by a voter and replaced with a new ballot.
The eligibility of any
voter to have voted shall not be an issue in a recount. Commencing
upon the filing of the recount, nothing shall prevent the discovery or
disclosure of any evidence that could be used pursuant to §24.2-803 in
contesting the results of an election.
C. The court shall
permit each candidate, or petitioner and governing body or chief executive
officer, to select an equal number of the officers of election to be recount
officials and to count printed ballots, or in the case of direct recording
electronic machines, to redetermine the vote. The number shall be fixed by the
court and be sufficient to conduct the recount within a reasonable period. The
court may permit each party to the recount to submit a list of alternate
officials in the number the court directs. There shall be at least one team of
recount officials to recount printed ballots and to redetermine the vote cast
on direct recording electronic machines of the type that prints returns for the
election district at large in which the recount is being held. There shall be
at least one team from each locality using ballot scanner machines to insert
the ballots into one or more scanners. The ballot scanner
machines shall be programmed to count only votes cast for parties to the
recount or for or against the question in a referendum recount. Each
team shall be composed of one representative of each party.
The court may provide
that if, at the time of the recount, any recount official fails to appear, the
remaining recount officials present shall appoint substitute recount officials
who shall possess the same qualifications as the recount officials for whom
they substitute. The court may select pairs of recount coordinators to serve
for each county or city in the election district who shall be members of the
county or city electoral board and represent different political parties. The
court shall have authority to summon such officials and coordinators. On the
request of any party to the recount, the court shall allow that party to
appoint one representative observer for each team of recount officials. The
representative observers shall have an unobstructed view of the work of the
recount officials. The expenses of its representatives shall be borne by each
party.
D. 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.
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.
E. Costs
of the recount shall be assessed against the counties and cities comprising the
election district when (i) the candidate petitioning for the recount is
declared the winner; (ii) the petitioners in a recount of a referendum win the
recount; or (iii) there was between the candidate apparently nominated or
elected and the candidate petitioning for the recount a difference of not more
than one-half of one percent of the total vote cast for the two such candidates
as determined by the State Board or electoral board prior to the recount.
Otherwise the costs of the recount shall be assessed against the candidate
petitioning for the recount or the petitioners in a recount of a referendum. If
more than one candidate petitions for a recount, the court may assess costs in
an equitable manner between the counties and cities and any such candidate if
both are liable for costs under this subsection. Costs incurred to date shall
be assessed against any candidate or petitioner who defaults or withdraws his petition.
F. The
court shall determine the costs of the recount subject to the following
limitations: (i) no per diem payment shall be assessed for salaried election
officials; (ii) no per diem payment to officers of election serving as recount
officials shall exceed two-thirds of the per diem paid such officers by the
county or city for service on election day; and (iii) per diem payments to
alternates shall be allowed only if they serve.
G. Any
petitioner who may be assessed with costs under subsection E shall post a bond
with surety with the court in the amount of $10 per precinct in the area
subject to recount. If the petitioner wins the recount, the bond shall not be
forfeit. If the petitioner loses the recount, the bond shall be forfeit only to
the extent of the assessed costs. If the assessed costs exceed the bond, he
shall be liable for such excess.
H. The recount
proceeding shall be final and not subject to appeal.
I. For the purposes of
this section:
"Overvote" means
a ballot on which a voter casts a vote for a greater number of candidates or
positions than the number for which he was lawfully entitled to vote and no
vote shall be counted with respect to that office or issue.
"Undervote"
means a ballot on which a voter casts a vote for a lesser number of candidates
or positions than the number for which he was lawfully entitled to vote.
§24.2-802. (Effective July 1, 2020) Recount standards.
A. The State Board of Elections shall promulgate standards for
(i) the proper handling and security of voting systems, ballots, and other
materials required for a recount, (ii) accurate
determination counting
of votes based upon objective evidence and taking into account the voting
system and form of ballots approved for use in the Commonwealth, and (iii) any
other matters that will promote a timely and accurate resolution of the
recount.
B. The State Board shall promulgate additional standards and instructions for the conduct of simultaneous recounts of two or more elections in a single election district.
C. The chief judge of the circuit court or the full recount court may, consistent with State Board of Elections standards, resolve disputes over the application of the standards and direct all other appropriate measures to ensure the proper conduct of the recount.
The recount procedures
to be followed throughout the election district shall be as uniform as
practicable, taking into account the types of ballots and voting systems in use
in the election district.
In preparation for the
recount, the clerks of the circuit courts shall (a) secure all printed ballots
and other election materials in sealed boxes; (b) place all of the sealed boxes
in a vault or room not open to the public or to anyone other than the clerk and
his staff; (c) cause such vault or room to be securely locked except when
access is necessary for the clerk and his staff; and (d) certify that these
security measures have been taken in whatever form is deemed appropriate by the
chief judge.
B. Within
seven calendar days of the filing of the petition for a recount of any election
other than an election for presidential electors, or within five calendar days
of the filing of a petition for a recount of an election for presidential
electors, the chief judge of the circuit court shall call a preliminary hearing
at which (i) motions may be disposed of and (ii) the rules of procedure may be
fixed, both subject to review by the full court. The petitioner and his counsel
and each other party and their counsel under supervision of the electoral board
and its agents shall have access to pollbooks and other materials used in the
election for examination purposes, provided that individual ballots cast in the
election shall not be examined at the preliminary hearing. The chief judge
during the preliminary hearing shall review all security measures taken for all
ballots and voting systems and direct, as he deems necessary, all appropriate
measures to ensure proper security to conduct the recount.
The chief judge,
subject to review by the full court, may set the place or places for the
recount and may order the delivery of election materials to a central location
and the transportation of voting systems to a central location in each county
or city under appropriate safeguards.
After the full court
is appointed under §24.2-801 or 24.2-801.1, it shall call a hearing at which
all motions shall be disposed of and the rules of procedure shall be fixed
finally, and it shall issue a written order setting out such rules of
procedure. The court shall call for the advice and cooperation of the
Department, the State Board, or any local electoral board, as appropriate, and
such boards or agency shall have the duty and authority to assist the court.
The court shall fix procedures that shall provide for the accurate
determination of votes in the election.
The determination of
the votes in a recount shall be based on votes cast in the election and shall
not take into account (a) any
absentee ballots or provisional ballots sought to be cast but ruled invalid and
not cast in the election, (b)
ballots cast only for administrative or test purposes and voided by the
officers of election, or (c)
ballots spoiled by a voter and replaced with a new ballot.
The eligibility of any
voter to have voted shall not be an issue in a recount.
Commencing upon the filing of the recount, nothing shall prevent the discovery
or disclosure of any evidence that could be used pursuant to §24.2-803 in
contesting the results of an election.
C. The court shall
permit each candidate, or petitioner and governing body or chief executive
officer, to select an equal number of the officers of election to be recount
officials and to count printed ballots. The number shall be fixed by the court
and be sufficient to conduct the recount within a reasonable period. The court
may permit each party to the recount to submit a list of alternate officials in
the number the court directs. There shall be at least one team from each
locality using ballot scanner machines to insert the ballots into one or more
scanners. The ballot scanner machines shall be programmed to
count only votes cast for parties to the recount or for or against the question
in a referendum recount. Each team shall be
composed of one representative of each party.
The court may provide
that if, at the time of the recount, any recount official fails to appear, the
remaining recount officials present shall appoint substitute recount officials
who shall possess the same qualifications as the recount officials for whom they
substitute. The court may select pairs of recount coordinators to serve for
each county or city in the election district who shall be members of the county
or city electoral board and represent different political parties. The court
shall have authority to summon such officials and coordinators. On the request
of any party to the recount, the court shall allow that party to appoint one
representative observer for each team of recount officials. The representative
observers shall have an unobstructed view of the work of the recount officials.
The expenses of its representatives shall be borne by each party.
D. 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 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.
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 ballot scanners, 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.
E. Costs of the
recount shall be assessed against the counties and cities comprising the
election district when (i) the candidate petitioning for the recount is
declared the winner; (ii) the petitioners in a recount of a referendum win the
recount; or (iii) there was between the candidate apparently nominated or elected
and the candidate petitioning for the recount a difference of not more than
one-half of one percent of the total vote cast for the two such candidates as
determined by the State Board or electoral board prior to the recount.
Otherwise the costs of the recount shall be assessed against the candidate
petitioning for the recount or the petitioners in a recount of a referendum. If
more than one candidate petitions for a recount, the court may assess costs in
an equitable manner between the counties and cities and any such candidate if
both are liable for costs under this subsection. Costs incurred to date shall
be assessed against any candidate or petitioner who defaults or withdraws his
petition.
F. The court shall
determine the costs of the recount subject to the following limitations: (i) no
per diem payment shall be assessed for salaried election officials; (ii) no per
diem payment to officers of election serving as recount officials shall exceed
two-thirds of the per diem paid such officers by the county or city for service
on election day; and (iii) per diem payments to alternates shall be allowed
only if they serve.
G. Any petitioner who
may be assessed with costs under subsection E shall post a bond with surety
with the court in the amount of $10 per precinct in the area subject to
recount. If the petitioner wins the recount, the bond shall not be forfeit. If
the petitioner loses the recount, the bond shall be forfeit only to the extent
of the assessed costs. If the assessed costs exceed the bond, he shall be
liable for such excess.
H. The recount
proceeding shall be final and not subject to appeal.
I. For the purposes of
this section:
"Overvote"
means a ballot on which a voter casts a vote for a greater number of candidates
or positions than the number for which he was lawfully entitled to vote and no
vote shall be counted with respect to that office or issue.
"Undervote"
means a ballot on which a voter casts a vote for a lesser number of candidates
or positions than the number for which he was lawfully entitled to vote.
§24.2-802.1. Preliminary hearing; court to fix procedure for recount, appoint officers, and supervise the recount.
A. Within seven calendar days of the filing of the petition for a recount of any election other than an election for presidential electors, or within five calendar days of the filing of a petition for a recount of an election for presidential electors, the chief judge of the circuit court shall call a preliminary hearing at which (i) motions may be disposed of and (ii) the rules of procedure may be fixed, both subject to review by the full court. The petitioner and his counsel and each other party and their counsel under supervision of the electoral board and its agents shall have access to pollbooks and other materials used in the election for examination purposes, provided that individual ballots cast in the election shall not be examined at the preliminary hearing. The chief judge during the preliminary hearing shall review all security measures taken for all ballots and voting systems and direct, as he deems necessary, all appropriate measures to ensure proper security to conduct the recount.
The chief judge, subject to review by the full court, may set the place for the recount and may order the delivery of election materials to a central location and the transportation of voting systems to a central location in each county or city under appropriate safeguards.
B. After the full court is appointed under §24.2-801 or 24.2-801.1, it shall call a hearing at which all motions shall be disposed of and the rules of procedure shall be fixed finally, and it shall issue a written order setting out such rules of procedure. The court shall call for the advice and cooperation of the Department, the State Board, or any local electoral board, as appropriate, and such boards or agency shall have the duty and authority to assist the court. The court shall fix any additional procedures, that are not provided for in this chapter, that shall provide for the accurate counting of votes in the election. The recount procedures to be followed throughout the election district shall be as uniform as practicable, taking into account the types of ballots and voting systems in use in the election district.
C. The court shall permit each candidate, or petitioner and governing body or chief executive officer, to select an equal number of the officers of election to be recount officials and to count printed ballots. The number shall be fixed by the court and be sufficient to conduct the recount within a reasonable period. The court may permit each party to the recount to submit a list of alternate officials in the number the court directs. There shall be at least one team from each locality using ballot scanner machines to insert the ballots into one or more scanners. Each team shall be composed of one representative of each party.
The court may provide that if, at the time of the recount, any recount official fails to appear, the remaining recount officials present shall appoint substitute recount officials who shall possess the same qualifications as the recount officials for whom they substitute. The court may select pairs of recount coordinators to serve for each county or city in the election district who shall be members of the county or city electoral board and represent different political parties. The court shall have authority to summon such officials and coordinators. On the request of any party to the recount, the court shall allow that party to appoint one representative observer for each team of recount officials. The representative observers shall have an unobstructed view of the work of the recount officials. The expenses of its representatives shall be borne by each party.
D. 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.
§24.2-802.2. General recount procedures.
A. For the purposes of this section:
"Overvote" means a ballot on which a voter casts a vote for a greater number of candidates or positions than the number for which he was lawfully entitled to vote and no vote shall be counted with respect to that office or issue.
"Undervote" means a ballot on which a voter casts a vote for a lesser number of candidates or positions than the number for which he was lawfully entitled to vote.
B. The recount of the votes shall be based on votes cast in the election and shall not take into account (i) any absentee ballots or provisional ballots sought to be cast but ruled invalid and not cast in the election, (ii) ballots cast only for administrative or test purposes and voided by the officers of election, or (iii) ballots spoiled by a voter and replaced with a new ballot.
C. The eligibility of any voter to have voted shall not be an issue in a recount. Commencing upon the filing of the recount, nothing shall prevent the discovery or disclosure of any evidence that could be used pursuant to §24.2-803 in contesting the results of an election.
D. There shall be only one recount of the vote in each precinct. The recount of the vote 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 §24.2-802.
2. 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 parties 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 § 24.2-802. 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 §24.2-802. 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 correct for those machine-readable ballots unless the court finds sufficient cause to rule otherwise.
E. 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 ballot scanners, 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.
F. 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 settling all matters pertaining to the recount of the vote as raised by the parties, the court shall certify to the State Board and the electoral board (i) 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 (ii) 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.
G. The recount proceeding shall be final and not subject to appeal.
§24.2-802.3. Costs of the recount.
A. Costs of the recount shall be assessed against the counties and cities comprising the election district when (i) the candidate petitioning for the recount is declared the winner; (ii) the petitioners in a recount of a referendum win the recount; or (iii) there was between the candidate apparently nominated or elected and the candidate petitioning for the recount a difference of not more than one-half of one percent of the total vote cast for the two such candidates as determined by the State Board or electoral board prior to the recount. Otherwise the costs of the recount shall be assessed against the candidate petitioning for the recount or the petitioners in a recount of a referendum. If more than one candidate petitions for a recount, the court may assess costs in an equitable manner between the counties and cities and any such candidate if both are liable for costs under this subsection. Costs incurred to date shall be assessed against any candidate or petitioner who defaults or withdraws his petition.
B. The court shall appraise the costs of the recount subject to the following limitations: (i) no per diem payment shall be assessed for salaried election officials; (ii) no per diem payment to officers of election serving as recount officials shall exceed two-thirds of the per diem paid such officers by the county or city for service on election day; and (iii) per diem payments to alternates shall be allowed only if they serve.
C. Any petitioner who may be assessed with costs under subsection A shall post a bond with surety with the court in the amount of $10 per precinct in the area subject to recount. If the petitioner wins the recount, the bond shall not be forfeit. If the petitioner loses the recount, the bond shall be forfeit only to the extent of the assessed costs. If the assessed costs exceed the bond, he shall be liable for such excess.
§24.2-814. Contest following recount.
A candidate in a primary or an election to office, who was
originally declared a winner and subsequently loses as the result of a recount,
may file either (i) notice of his intent to contest the result in accordance
with §24.2-803 or §
24.2-804 or (ii) a written complaint pursuant to §24.2-805 or § 24.2-806. Such notice or
complaint shall be filed within 10 days following the date of the entry of the
order of the recount court pursuant to subsection F of § D
24.2-802 24.2-802.2.
In the case of a contest pursuant to §24.2-803 or § 24.2-804, the times for
filing the answer, petition, and reply and for taking depositions and
affidavits shall be set by the Committee on Privileges and Elections of the appropriate
house. The Committee may consider the contestant's and contestee's
recommendations for the procedural schedule.
This section shall not be applicable to a contest of an election for the President and Vice President of the United States.