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 D F of § 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.