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Virginia > Title 24.2 Elections > Recounts And Contested Elections

§ 24.2-802 Procedure for recount

Overview of Statute

This section details the procedure for the recount, including the duties of the State Board in promulgating recount standards.

Statute

(Effective until July 1, 2020)

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 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. 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. 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.

1979, c. 293, § 24.1-250; 1980, c. 639; 1981, c. 570; 1982, c. 650; 1983, c. 461; 1984, c. 480; 1993, c. 641; 2000, cc. 938, 1057; 2001, cc. 639, 641, 646; 2002, cc. 601, 647; 2003, c. 268; 2004, c. 410; 2006, c. 689; 2007, cc. 285, 939, 943; 2008, c. 682; 2011, c. 522; 2014, cc. 540, 576; 2015, c. 740.

§ 24.2-802. (Effective July 1, 2020) Procedure for recount. (2016 updated section)

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 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. 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. 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.

1979, c. 293, § 24.1-250; 1980, c. 639; 1981, c. 570; 1982, c. 650; 1983, c. 461; 1984, c. 480; 1993, c. 641; 2000, cc. 938, 1057; 2001, cc. 639, 641, 646; 2002, cc. 601, 647; 2003, c. 268; 2004, c. 410; 2006, c. 689; 2007, cc. 285, 939, 943; 2008, c. 682; 2011, c. 522; 2014, cc. 540, 576; 2015, c. 740; 2016, c. 464.

Annotation: 03/04/2016 6:06 pm

Under 24.2- 801 or 801.1 the chief judge of the circuit court in which the petition for recount is filed is the presiding judge and will serve with two other judges appointed by the Chief Justice of the Supreme Court of Virginia. The first proceeding in a recount will conducted by the chief judge of the circuit court under this section 24.2-802.
The State Board of Elections has several templates for the preliminary order.

Annotation: 5:56 pm

Given the lack of specifics as to the recount process, except for the redetermination standards for each type of voting mode found in section 24.2-802 (D), the establishment of “rules of procedure” are essential to uniformity ( required by subsection (A)) and to the recount itself. Starting with the first state-wide recount in Virginia in 1989 ( Coleman v. Wilder), a generally accepted form of procedures has been adopted. These procedures include ( subject to adjustment for each election and based on a state-wide recount with adjustments necessary for local races as provided in section 24.2-801 ):
I. Period Preceding Recount
All voting machine keys, poll books, statements of results, printed return sheets, print-out tapes produced by computers or other machines, ballots, and other election materials used or produced in connection with the________ Election for ________________ (the “Election”), and previously delivered to the Clerk(s) of the Circuit Courts of Virginia, shall remain in the safekeeping of the Clerk(s )to whom they were delivered, who shall ensure that such material remains secure and undisturbed. All voting equipment used in the Election shall remain secure and undisturbed in the locations where it is presently situated. The Electoral Board of each county and city shall continue to ensure the security of the voting equipment.
The Clerk(s) are hereby ordered to implement the following security measures, or if they have already done so, to: (a) secure all paper ballots and other election materials in sealed boxes (closing and sealing all openings to boxes); (b) place all 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 or his staff; (d) implement all other security measures, if any, taken by the Clerk with respect to trial evidence; and (e) if any Clerk has not done so pursuant to this Court’s Preliminary Order, certify in writing to this Court (i) the security measures taken by the Clerk following the election through the date of this Order and (ii) the security measures taken pursuant to this Order, said certification to be provided to this Court within 24 hours of entry of this Order.
Promptly upon request of a representative of either Party, the General Registrar of each city and county shall continue to provide counsel or counsel’s agent of both parties with access to and copies of the following documents from the materials maintained by the General Registrar in his office: all statements of results (original and corrected), printed return sheets, print-out tapes produced by computers or other machines, pollbooks (whether in paper or electronic format), and abstracts of votes (original and corrected) from the Election. If the General Registrar does not have any of these materials in his office, he shall so advise counsel, and, in no event shall this provision be construed to authorize the opening of any materials, other than those set forth above, kept under seal by the clerk of the court. Each party shall be responsible for the expense of copying their respective copies of such documents, if any.
Promptly upon request of a representative of either Party, the Clerk of each Circuit Court shall continue to provide counsel or counsel’s agent of both parties with access to and copies of the following documents from the materials maintained by the Clerk’s office: all statements of results (original and corrected), printed return sheets, print-out tapes produced by computers or other machines, pollbooks (whether in paper or electronic format), and abstracts of votes (original and corrected) from the Election. If the Clerk of Court does not have any of these materials in his office, he shall so advise counsel, and, in no event shall this provision be construed to authorize the opening of any materials, other than those set forth above, kept under seal by the clerk of the court. Each party shall be responsible for the expense of copying their respective copies of such documents, if any.
II. Date and Time of Recount
The recount of ballots and redetermination of the votes cast in the Election shall take place in the offices of, or other facilities provided or arranged by, the Clerks of the Circuit Court of _____________on _____________, beginning at 9:00 a.m., at which time the Recount Coordinators, Officials, and Alternates shall appear in the Offices of the Circuit Court Clerks for their respective cities and counties, or at other facilities provided or arranged for by such Clerks, to receive such instructions and take such oaths as the Court may prescribe. The recount shall be conducted according to procedures and instructions contained in this Procedural Order. Additionally, to the extent not inconsistent with the provisions of this Procedural Order, the recount shall be conducted in accordance with the State Board of Elections’ most recent Instructions for Recount Officials and Instruction for Recount Coordinators (copy attached as Attachment A); the Standards for Recount of Virginia Elections, as revised ; and the Ballot Examples for Handcounting Paper or Paper-Based Ballots for Virginia Elections or Recounts . The results shall be recorded on forms prepared and submitted to the Court by the State Board of Elections, which shall consult with counsel for the Parties as part of such preparation and prior to such submission.
III. Court Supervision of Recount
The overall recount and redetermination shall be supervised by the Court, which shall be assisted by the State Board of Elections, the Local Electoral Boards and the General Registrars of ————-. In each county and city, the Court shall supervise the recount through pairs of the Recount Coordinators, who shall be the Chairman and the Secretary of each Local Electoral Board; provided, however, that if they are both representatives of the same political party, the candidate of that political party shall designate one of them to serve with an Electoral Board member of the opposite party for that jurisdiction. In the event that a member of the Electoral Board is unable to serve, the candidate whose party is not represented by a Recount Coordinator shall be authorized to name a Recount Official to act as a Recount Coordinator. Each Electoral Board shall ensure that a voting equipment technician is available if needed.
IV. Location of Recount
The recount and redetermination of the vote shall begin at 9:00 a.m. on ________. The Recount Officials, Alternates and Recount Coordinators shall be summoned to appear in the offices of the circuit court Clerks for their respective cities and counties, or at other facilities provided or arranged for by such Clerks, to receive such instructions and take oaths. The recount of ballots and redetermination of votes cast in the Election shall take place in the offices of, or other facilities provided or arranged by, the Clerks of the Circuit Courts of the various counties and cities of the Election district according to procedures and instructions set forth in this procedural order. The offices or facilities provided or arranged by the Clerks shall be of sufficient size for the purposes of the recount and redetermination and shall allow for direct and proximate observation of the Recount Officials by the Recount Observers.
V. Programming of Tabulators
Pursuant to Va. Code Ann. § 24.2-802(D)(3), each optical scan ballot tabulator which may be needed for the recount shall be programmed to count only the ballots cast in the race for the Election District and to set aside all ballots containing write-in votes, overvotes, and undervotes in the Election.
To the extent that a tabulator cannot be programmed in accordance with the foregoing requirements of state law, the Recount Coordinators shall provide notice to the parties and the Court of that fact as well as an explanation of any deviations from said requirements.
VI. Testing Requirements [ To be coordinated with the State Board of Elections]
Final testing of each tabulator shall occur at such time and place as designated previously in Part IV of this Order or at such earlier time as may be set by a local Electoral Board, with prior electronic notice to counsel for each party. Each Party is entitled to have designated testing observers present for the final testing.
If it is determined by the Recount Coordinators that blank ballots held under seal by the Clerk are necessary to conduct such testing, then the Clerk shall take the following actions in the presence of the recount coordinators and testing observers:
(a) unseal one envelope containing unused optical scan ballots and remove fifteen (15) such ballots;
(b) provide the fifteen (15) unused ballots to the recount coordinators; and
(c) immediately reseal the envelope and replace it into the box from which it came.
In the presence of the testing observers, the recount coordinators shall mark each of the fifteen (15) “test ballots” as follows:
(a) five (5) shall be marked for X;
(b) four (4) shall be marked for Y;
(c) three (3) shall be marked for a write-in candidate named “John Doe”;
(d) two (2) shall be marked both for X and Y (overvote);
(e) one (1) shall remain unmarked for any candidate in the Election (undervote).
In the presence of the testing observers, each of the fifteen (15) “test ballots” shall be run through the tabulator programmed in accordance with this Order. After the “test ballots” have been run, the recount coordinators shall print the results from the test run.
If the Recount Officials determine that the tabulator has been correctly programmed to count only the votes for the House Election in the recount and to set aside all ballots containing write-in votes, overvotes, and undervotes, the Recount Cordinators shall take the following actions in the presence of the testing observers:
(a) immediately reset the tabulator counter back to zero and lock the tabulator;
(b) print the date and the term “TEST BALLOT” across the face of each of the fifteen (15) “test ballots” and sign the ballots; and
(c) return the fifteen (15) “test ballots” to the clerk.
If the voting equipment in a locality requires the use of ballots for the programming function in addition to the fifteen (15) ballots used for the testing function, the Clerk shall be authorized to provide the Recount Coordinators with the precise number of programming ballots so required, but not more, to the recount coordinators. These ballots shall be used solely for the programming function, but shall not be included in the test run of fifteen (15) test ballots.
The clerk shall in the presence of the recount coordinators and testing observers replace the fifteen (15) “test ballots” (and all programming ballots, if any) into a separate envelope marked “RECOUNT TEST BALLOTS – DO NOT OPEN,” seal the envelope, and place it into a sealed box of election materials.
If the tabulator does not accurately count and set aside the fifteen (15) “test ballots,” the recount coordinators shall require the tabulator to be re-programmed in compliance with this Order, whereupon the recount coordinators shall re-run the fifteen (15) “test ballots” again and follow the steps outlined in this Order.
VII. Recount to be Uninterrupted
The recount shall begin as soon as the Recount Coordinators and Recount Officials have taken their oaths and received their instructions and shall continue without interruption (except one hour for lunch and one hour for dinner, if necessary) until completed.
VIII. Recount Officials, Alternate Recount Officials, and Recount Coordinators
The Recount Officials and Alternate Recount Officials for each jurisdiction shall be chosen by the Parties from among the Officers of Election previously appointed by the Electoral Board for that jurisdiction pursuant to Va. Code § 24.2-115. The number of Recount Teams and the number of Recount Officials to be appointed for each jurisdiction are set forth on Attachment ___ to this Procedural Order. Each of the Parties may also name Alternate Recount Officials from among the Officers of Election.
The Recount Coordinators and Recount Officials shall be Officers of the Court acting under its jurisdiction. Nothing contained in this Order and in the procedures to be established for the recount shall be construed, however, to prevent the Parties or their representatives from communicating directly with the Recount Coordinators and Recount Officials, but they are prohibited from interfering with the members of the recount team in any way.
The Preliminary Order required each candidate to submit [to] the Court by no later than 5:00 p.m. on _______, the names and addresses of the Recount Coordinators, Recount Officials and Alternate Recount Officials whom he has chosen to serve. Each person so identified was subject to disqualification by the Court for good cause shown. Such persons identified on Attachment __to this Order hereby are appointed as Recount Coordinators, Recount Officials and Alternate Recount Officials. Hereafter, the Parties may substitute new Officials, Coordinators or Alternates by agreement or, absent such agreement, upon a showing of good cause and with leave of Court.
To the extent not already completed, the Clerk of this Court is authorized and directed to issue the necessary summonses to compel the attendance of the Recount Coordinators, Recount Officials, and Alternate Recount Officials chosen by the Parties to appear at 8:30 a.m. on _______________, at the Office of the Clerk of the Circuit Court of their respective localities, or at other facilities provided or arranged for by such Clerks, to commence the recount of the vote. The summonses shall be on forms prescribed by the Court and shall be issued by the Clerk, who shall mail them directly to the Recount Coordinators, Recount Officials and Alternate Recount Officials. The Parties are directed to cooperate with the Clerk in completing the summonses, providing address labels, and providing such other assistance as is necessary to expedite the mailing of the summonses.
IX. Recount Observers
Each Party is authorized to appoint, and is entitled to have present at the recount and redetermination, one Observer for each team of two Recount Officials. Persons shall qualify as Observers by submitting to the Recount Coordinators a statement, signed by a representative of or counsel for a Party, giving the person’s name and authorizing him or her to represent the candidate as an Observer. A photocopy authorization form shall suffice. Not later than ____p.m. at least five days before the start of the Recount, the candidates shall exchange with one another and lodge with the Clerk the form of their respective authorization statements that will constitute the credentials of their Recount Observers.
X. Ex Parte Training of Recount Coordinators, Recount Officials
and Alternate Recount Officials
All Recount Coordinators, Recount Officials and Alternate Recount Officials are officers of the Court, and shall be subject to such training as may be provided by recount coordinators based on training materials provided by the State Board of Elections. Neither Party nor the representative of either Party shall undertake any in-person, telephonic or electronic training of any recount coordinators, recount officials or alternate recount officials in their duties. No written communications from a Party or his representative to any recount coordinator, recount official and/or alternate recount official shall be made ex parte, and any such written communication shall be simultaneously served on counsel for the opposing Party and filed with the Clerk (except that communications addressing only time and place of the recount, availability to serve and similar administrative matters are not subject to this requirement). Nothing contained herein shall be construed to prevent any Party or the representative of any Party from encouraging recount coordinators, recount officials and alternate recount officials to participate in such training as may be provided by the State Board of Elections. Nothing contained herein shall be construed to prevent the Parties or their representatives from communicating directly with the recount coordinators, recount officials and alternate recount officials during the recount, but they are prohibited from interfering with the members of the recount team in any way.
XI. Inclement Weather
In the event of snow or other inclement weather, the Sheriffs of the counties and cities of the Election District are directed to provide transportation, as needed, to the Recount Coordinators, Recount Officials and Alternate Recount Officials to and from their homes, and if necessary, to and from the site of the recount, and to and from the locations of voting machines.
XII. Procedures for Recount and Redetermination
A. Except as described below, the recount and redetermination shall occur in the offices of, or other facilities arranged by, the Clerks of the Circuit Courts of the Commonwealth, who are hereby directed to make facilities of sufficient size available for this purpose.
B. Immediately prior to the commencement of the recount, once all Recount Officials and any necessary Alternates are identified, unneeded Alternates may be dismissed, subject to recall by the Recount Coordinators if necessary. The Clerks then shall administer the following oath to the Recount Coordinators and Recount Officials.
I do solemnly swear (or affirm) that I will perform the duties for this election recount according to law and the best of my ability, and that I will studiously endeavor to prevent fraud, deceit, and abuse in conducting this election recount, so help me God.

C. Paper ballots shall be recounted, and the vote in the Election shall be redetermined, as follows:
(i) Paper Ballots. Paper ballots shall be recounted physically at the offices of, or other facilities arranged by, the Clerks of the Circuit Courts, using the standards promulgated by the State Board of Elections pursuant to Va. Code § 24.2-802(A). If the paper ballots counted in the House Election cannot be found in a precinct which used paper ballots, the original Statement of Results for the precinct in which said paper ballots cannot be found shall be delivered to the Court. If there is a dispute about whether the paper ballots found in a precinct or jurisdiction are the same ballots as were cast in the House Election, or if the number of paper ballots appearing to have been cast in a precinct is different from the number of paper ballots cast as shown on the Statement of Results, then the paper ballots thus in dispute, together with the original Statement(s) of Results, and any other election materials requested by the Court from the precincts in question, shall be delivered to the Court. Each party reserves all arguments and does not waive any arguments with respect to the extent, if any, to which such election materials may be considered by the Court in resolving such disputes about paper ballots.
(ii) Direct Recording Electronic Machines. The vote shall be redetermined by an examination of the printed return sheets. If the printout is not clear, or upon the Court’s request, the vote shall be redetermined by rerunning the printout from the machine or by examining the counters as appropriate. If, on all direct electronic voting devices, 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 on the pollbooks of persons voting on the devices, the figures recorded on the devices shall be accepted as correct.
(iii) Optical Scan Tabulators. The Recount Officials shall rerun all optical scan ballots through a tabulator programmed to count only the votes for the U.S. Representative for the Fifth Congressional District, 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 tabulator, and any ballots for which a tabulator could not be programmed to meet the requirements of this Order, shall be hand counted using the standards promulgated by the State Board of Elections pursuant to Va. Code § 24.2-802(A).
D. If the Recount Officials cannot agree on whether or how a ballot is to be counted, that ballot shall be treated as challenged and shall be transmitted to the Court in an envelope which shall be sealed and which shall be marked to denote the jurisdiction, the precinct, and the names of the Recount Officials who reviewed the ballot and who disagree on whether or how it should be counted. The written statement of any one Recount Official challenging a ballot or Statement of Results shall be sufficient to require its submission to the Court.
E. The recount and redetermination of the vote shall consider only votes cast in the Election. The recount and redetermination 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 officers of election, or (iii) ballots spoiled by a voter and replaced with a new ballot. There shall be only one redetermination of the vote in each precinct. No later than Noon, on ______________, each General Registrar in the Election shall certify, via email, to the Court with copies to counsel for both parties (i) the last date on which the General Registrar mailed absentee ballots to Virginia overseas and military voters eligible to vote pursuant to the Uniformed and Overseas Citizen’s Absentee Voting Act (“UOCAVA”), 42 U.S.C. § 1973ff et seq., and (ii) the number of UOCAVA ballots received by the General Registrar after 7:00 p.m. on day of the Election (iii) which, if any, UOCAVA ballots received by the General Registrar after 7:00 p.m. on Election Day, were mailed to the overseas or military voter after ____________, 2008, and (iv) the location of such ballots. Each party reserves all arguments and does not waive any arguments with respect to whether such ballots should be counted in this recount.
F. All optical scan tabulators to be used in the recount shall be tested, prepared, locked and sealed in accordance with the requirements of the Code of Virginia.
XIII. Computation of Locality-by-Locality Results
At the conclusion of the recount of each precinct, using forms supplied by the State Board of Elections, the Recount Officials shall write down the number of valid ballots cast in the , 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 Parties to this recount. They then shall submit their forms, along with the ballots or the Statement of Results used, as to the validity of which questions exist, to the Court as provided in Section XIV, below.
XIV. Transport of Election Materials
The Virginia State Police is directed to collect the recount materials (including the tabulation forms, any envelopes containing challenged ballots, and all documentation prepared by or filled out by the Recount Coordinators or Officials during the course of the recount and redetermination) from the Circuit Court Clerks in each city and county of the Commonwealth at 5:00 p.m. on the day of the recount and redetermination, or as soon thereafter as such materials may be available, and to transport such materials to the appropriate State Police division headquarters for compilation, and then to transport the compiled materials immediately to the Clerk of this Court, regardless of the hour. The Clerk is directed to make arrangements to receive the forms, envelopes containing challenged ballots and other materials from the State Police, regardless of the hour, and to maintain these materials securely at all times.
XV. Computation of Results of the Election
The Clerk shall be prepared to report to the Chief Judge of this Court at 9:00 a.m. on _____________, the localities from which forms and other election materials have not yet been received. Thereafter, the State Board of Elections, under the Court’s supervision, immediately shall begin tabulating the results for each locality and for the Election District as a whole. Representatives of each candidate shall be afforded an opportunity to examine the challenged ballots in the presence of an Officer of the Court while the State Board of Elections is tabulating the results.
The tabulation shall be recorded on forms prepared by the State Board of Elections in consultation with counsel for the candidates and approved by the Court. The State Board of Elections may engage an outside accounting firm to assist it in the tabulation of the vote. The results of the tabulation, together with the forms on which the votes have been recorded, shall upon completion be delivered to the Court.
XVI. Court to Convene
The Court shall be available to convene telephonically on _______________for the purpose of entering any orders necessary to direct the conduct of each locality’s vote tabulation. The Court shall convene at 9:00 a.m. on ___________. for the purpose of determining all matters pertaining to the recount and redetermination of the vote as raised by the Parties, to hear arguments, if any, and to rule on any challenged ballots and votes. By an appropriate order, the Court will conclude the recount and redetermination by certifying to the State Board of Elections the vote of each of the candidates and declare the person who received the higher number of votes to be elected.

XVIII. Compensation and Mileage Expense
Recount Officials shall be paid a per diem payment equal to two-thirds of the per diem payment which they received for service on Election Day. They should submit their request for per diem payment and mileage on forms supplied by the State Board of Elections. Alternate Recount Officials who do not serve shall submit their request for mileage on forms supplied by the State Board of Elections.
XIX. Other
This matter is continued until ______________ at which time the Court will be available to convene telephonically and remain in session until the recount is completed. The Clerk is directed immediately to send a copy of this Procedural Order to the Sheriff and the Clerk of the Circuit Court of each county and city in the Election District, to the Superintendent of the Virginia State Police. The Clerks of the Circuit Courts of each county and city are directed to provide copies of this Order to their respective Sheriffs and to direct their attention especially to Part XV. The State Board of Elections is directed to send a copy of this Procedural Order to the Electoral Board of each county and city in the Election District.

Annotation: 5:30 pm

Given the general nature of section 802, the court must set the rules of procedures for the recount. The first step is for the chief judge to consider the scope of the recount ( election district) and any immediate issues of ballot security. The chief judge, subject to review the full three judge court, may establish preliminary rules of procedure. In the ordinary course, the rules of procedure are established by the full court appointed under section 24.2-801 ( recounts) or section 24.2-801.1 (recounts for presidential electors). as provided in 24.2-802(B)( third paragraph as noted in following annotation)

Annotation: 5:19 pm

Uniformity throughout the recount is a key element to equal protection and due process. See Bush v. Gore, 531 U.S.527 (2000) ( per curiam)

Annotation: 02/28/2016 10:29 pm

Administrative regulations, 1 VAC Chapter 80, Recounts and Contested Elections, incorporates Ballot Examples for Handcounting. Step-by-step instructions are available on the Department’s website, http://elections.virginia.gov/Files/ElectionAdministration/ElectionLaw/Recount-Step-by-Step-2015.pdf

Definition [Department]

The state agency headed by the Commissioner of Elections.

See § 24.2-101.

Definition [Referendum]

Any election held pursuant to law to submit a question to the voters for approval or rejection.

See § 24.2-101.

Definition [State Board]

The State Board of Elections.

See § 24.2-101.

Definition [Paper ballot]

A tangible ballot that is marked by a voter and then manually counted.

See § 24.2-101.

Definition [Voting system]

The electronic voting and counting machines used at elections. This term includes direct recording electronic machines (DRE) and ballot scanner machines.

See § 24.2-101.

Definition [Printed ballot]

A tangible ballot that is printed on paper and includes both machine-readable ballots and paper ballots.

See § 24.2-101.

Definition [Electoral board]

A board appointed pursuant to § 24.2-106 to administer elections for a county or city. The electoral board of the county in which a town or the greater part of a town is located shall administer the town’s elections.

See § 24.2-101.

Definition [Election district]

The territory designated by proper authority or by law which is represented by an official elected by the people, including the Commonwealth, a congressional district, a General Assembly district, or a district for the election of an official of a county, city, town, or other governmental unit.

See § 24.2-101.

Definition [Local electoral board]

A board appointed pursuant to § 24.2-106 to administer elections for a county or city. The electoral board of the county in which a town or the greater part of a town is located shall administer the town’s elections.

See § 24.2-101.

Definition [Ballot scanner machine]

The electronic counting machine in which a voter inserts a marked ballot to be scanned and the results tabulated.

See § 24.2-101.

Definition [Machine-readable ballot]

A tangible ballot that is marked by a voter or by a system or device operated by a voter and then fed into and scanned by a counting machine capable of reading ballots and tabulating results.

See § 24.2-101.

Definition [Direct recording electronic machine]

The electronic voting machine on which a voter touches areas of a computer screen, or uses other control features, to mark a ballot and his vote is recorded electronically.

See § 24.2-101.

Definition [Party]

An organization of citizens of the Commonwealth which, at either of the two preceding statewide general elections, received at least 10 percent of the total vote cast for any statewide office filled in that election. The organization shall have a state central committee and an office of elected state chairman which have been continually in existence for the six months preceding the filing of a nominee for any office.

See § 24.2-101.

Definition [Board]

The State Board of Elections.

See § 24.2-101.

Definition [State]

A state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.

See § 24.2-452.

Definition [Person]

Any individual or corporation, partnership, business, labor organization, membership organization, association, cooperative, or other like entity.

For the purpose of applying the filing and reporting requirements of this chapter, the term “person” shall not include an organization holding tax-exempt status under § 501(c) (3), 501(c) (4), or 501(c) (6) of the United States Internal Revenue Code which, in providing information to voters, does not advocate or endorse the election or defeat of a particular candidate, group of candidates, or the candidates of a particular political party.

See § 24.2-945.1.

Definition [Election]

A general, primary, or special election.

See § 24.2-101.

Definition [Precinct]

The territory designated by the governing body of a county, city, or town to be served by one polling place.

See § 24.2-101.

Definition [Candidate]

A person who seeks or campaigns for an office of the Commonwealth or one of its governmental units in a general, primary, or special election and who is qualified to have his name placed on the ballot for the office. “Candidate” shall include a person who seeks the nomination of a political party or who, by reason of receiving the nomination of a political party for election to an office, is referred to as its nominee. For the purposes of Chapters 8 (§ 24.2-800 et seq.), 9.3 (§ 24.2-945 et seq.), and 9.5 (§ 24.2-955 et seq.), “candidate” shall include any write-in candidate. However, no write-in candidate who has received less than 15 percent of the votes cast for the office shall be eligible to initiate an election contest pursuant to Article 2 (§ 24.2-803 et seq.) of Chapter 8. For the purposes of Chapters 9.3 (§ 24.2-945 et seq.) and 9.5 (§ 24.2-955 et seq.), “candidate” shall include any person who raises or spends funds in order to seek or campaign for an office of the Commonwealth, excluding federal offices, or one of its governmental units in a party nomination process or general, primary, or special election; and such person shall be considered a candidate until a final report is filed pursuant to Article 3 (§ 24.2-947 et seq.) of Chapter 9.3.

See § 24.2-101.

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