National News

Virginia Voting Mess Was Never Supposed to Happen After Bush v. Gore

Posted December 28, 2017 2:50 p.m. EST

RICHMOND, Va. — It was the electoral nightmare Virginia never wanted to experience: being host to a high-profile mess like the 2000 presidential election recount in Florida, with officials obsessing over questionable ballots as political power hangs in the balance.

So 17 years ago, the state began writing a guidebook on how to handle such situations. The latest edition includes pictographs of ballots marked in unconventional ways — names crossed out, several boxes checked, “My guy” scrawled over a candidate’s name.

Despite the best intentions to avoid a Florida-style snafu, that is where Virginia now finds itself, with lawyers fighting over how to interpret one questionable ballot. And at stake is possible control of the Legislature.

“This is right up there with Bush v. Gore in my opinion in terms of the unbelievable sequence of events that have led us to where we are,” said Rebecca Green, co-director of the Election Law Program at William & Mary School of Law in Williamsburg.

Green called the Virginia predicament “the son of hanging chad,” a reference to Florida’s failed punch-card ballots from 2000. The Supreme Court stopped the recounting of contested ballots, declaring George W. Bush the next White House occupant.

On Tuesday, a court filing halted a previously scheduled name-drawing from a silver pitcher to break a tie between David Yancy, a Republican, and Shelly Simonds, a Democrat, in House District 94.

If a three-judge panel affirms the questionable ballot is a vote for Yancey — as it did once before — the race would be deadlocked at 11,608 votes each, and a drawing of lots would be back on, as state law requires. If the ballot is thrown out, Simonds would be the winner by a single vote, and 17 years of Republican control of the House of Delegates would end.

Court administrators in Newport News, where Simonds asked the judges to reverse their decision on the ballot, said a hearing was unlikely before Friday. Lawyers for Yancey had yet to respond to the Simonds challenge as of Thursday morning.

It was the painful constitutional reckoning of Bush v. Gore that prompted Virginia to write its guide to interpreting ambiguous ballots.

“We sat around a table in a law firm in Washington, D.C., and actually agreed to what ballots looked like by drawing them,” said Jack Young, who helped write the guide after serving as Gore’s chief recount lawyer in 2000. Also at the table, he said, was Cameron Quinn, a Republican who was then secretary of the State Elections Board and is now an official in the Trump administration.

The intent was to avoid a repeat of the situation in Florida, where there were no guidelines for interpreting problematic ballots, including punch cards where a voter’s light touch left a “hanging chad” of paper rather than a clean hole.

“In Palm Beach in 2000 the folks for both parties, Bush and Gore, got into fights about what a punch card was supposed to look like, arguing that a punch for my candidate would count but the identical punch for your candidate didn’t,” Young said.

Fifteen pages long in its latest edition, Virginia’s booklet is titled “Ballot Examples: Hand Counting Printed Ballots for Virginia Elections or Recounts.” It is a detailed guide to sussing out a voter’s intention.

Despite the best bipartisan effort to bring rationality to the process, however, Virginia finds itself in a mess.

The challenged ballot shows bubbles for both Simonds and Yancey filled in, with a slash through the Simonds vote. Yancey’s lawyers argued in court last week that the voter intended to cross out the Simonds vote. The state handbook reads, “If there are identical marks for two or more candidates, clarified by an additional mark or marks that appear to indicate support, the ballot shall be counted as a vote for the candidate with the additional, clarifying marks.”

As further evidence of intent, Yancey’s lawyers pointed out the voter selected all the named Republicans on the ballot.

But in a motion this week, Simonds’ lawyers noted the bubble for the Republican candidate for governor, Ed Gillespie, was both blacked in and also marked with an X. Could an extraneous mark be both a sign of opposition to Simonds and of support for Gillespie?

“Nothing in the ‘Ballot Examples’ authorized this Court to presume that the slash mark in question should be read as a mark of opposition to Ms. Simonds,” the Democrat’s lawyers argued in their motion. The ballot should be thrown out as an “overvote,” they said.

To a layman, a ballot may be “like a Rorschach Test,” open to interpretation, Simonds’ team argued. But that is not the way it is, they said. Election officials must follow specific examples in the guidebook.

A Republican elections lawyer not connected with the case, Jason Torchinsky, predicted the three-judge panel was unlikely to be persuaded to throw out the ballot. “It seems the Democrats in Virginia are now asking a court to deny a decision to count a vote,” he said by email. “Quite a change in position from their usual argument that every vote be counted.”

Simonds’ legal team further argued that the judges should never have agreed to consider the questionable ballot on Dec. 20, when it was brought to them one day after the official recount. The time to question the ballot was during the recount proper on Dec. 19, presided over by lawyers and observers for both candidates. A spokesman for the Republican House caucus, Parker Slaybaugh, said Democrats were trying to have it both ways. In another disputed House race this year, in District 28 including part of Fredericksburg, the Democratic candidate challenged a ballot after a recount took place. The court agreed to review the ballot and to count it for the Democrat.

“This is exactly analogous to our actions in House District 94 and demonstrates unequivocally that the actions of the Court in Newport News were appropriate and equitable,” Slaybaugh said in a statement.

Green, the election law expert, said she was not surprised.

“What’s so interesting to me about elections is that the same attorneys will use the same arguments on the other side, Democrat or Republican,” she said. “Depending on their stance in the recount, the lawyers will say literally the same things.”

She was only sorry that law school was on break. Her students would eat up this case in class, she said.